Case No: CO/2352/2003
Neutral Citation Number:  [2003] EWHC 2662 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Monday 10th November 2003
Before :

THE HONOURABLE MR JUSTICE NEWMAN

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Between :

	THE QUEEN ON THE APPLICATION OF 
PRISON officers’ ASSOCIATION	
Claimant	
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	THE SECRETARY OF STATE FOR 
THE HOME DEPARTMENT	
Defendant	

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(Transcript of the Handed Down Judgment of
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Mr Damian Brown (instructed by Lees Lloyd Whitley) for the Claimant
Mr Samuel Grodzinski (instructed by The Treasury Solicitor) for the Defendant

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Judgment

Mr Justice Newman: 

1.	In these proceedings, the Prison Officers’ Association (the “POA”) claims that it was not adequately consulted prior to the publication of Prison Service Instruction 09-2003 (the “PSI”).  The PSI formally abolished the central prescription of mandatory training of prison staff, and allowed training decisions to be made at a local level; something that had in practice been happening for many years.  

2.	The POA’s case is that adequate consultation did not take place and thereby a breach occurred of the Voluntary Agreement (the “VA”) which had been entered into between the Prison Service and the POA, which agreement, it is common ground, is a legally binding agreement.  

3.	In the course of argument it became apparent to the Court that, in essence, the grievance of the POA stemmed from conduct on the part of the Prison Service which it alleged constituted a breach of the VA, rather than any particular consequences to which the POA could point as having flowed from the alleged failure to consult.  In an endeavour to encourage a settlement of the proceedings and to avoid any possible exacerbation of the real differences which it appeared had opened up between the two parties, the Court gave time for discussion to take place.  Unfortunately no settlement could be reached.  As it emerged, it seems that the POA have a sense of grievance caused by what it regards as a deliberate failure on the part of the Defendant to follow the VA.  The Court, as a result, must rule on the differences.  

THE VOLUNTARY AGREEMENT

4.	“1.	Parties to the Agreement
The parties to this agreement are HM Prison Service (the Prison Service), acting on behalf of the Secretary of State for the Home Department and the Prison Officers’ Association (POA).
2.	Principles
	(1)	The parties agree that the overriding objectives of this collective agreement shall be that industrial relations are conducted in accordance with the procedures set out in schedule 1 to this agreement.  The purpose is to ensure that all collective disputes or grievances whether at local, area or national level are dealt with effectively and differences are resolved without disruption to the operation of the Prison Service.
	(2)	The agreement is underpinned by a partnership approach to solving industrial relations issues with both parties being committed to the success of the service.  The overall intention is to create a climate of relations between the parties in which there will be no occasion or necessity for the POA to consider industrial action.
	(3)	To achieve these objectives the Prison Service will initiate discussions as soon as is reasonably practical on any proposals for changes to policy or procedures that significantly affect staff at national, area or local level.  Relevant material and information will be provided to enable informed and constructive dialogue prior to decisions being taken.
	(4)	The Prison Service recognises that effective trade union representation is important to the conduct of relationships between management and staff in the service and will provide reasonable facilities to the POA for the recruitment of and communicate with its members.
3.	Scope of the Industrial Relations Procedural Agreement
	(1)	This agreement applies to all collective matters of policy and procedures or the collective application of policy and procedures which have a significant impact on those grades of staff represented by the POA which relate to any of the following matters:
a.	Terms and conditions of employment or the physical conditions in which any workers are required to work;
b.	Allocation of work or the duties of employment between workers or groups of workers;
	c.	Matters of disciplinary policy;
d.	Membership or non-membership of a trade union;
	e.	Facilities for officials of trade unions;
f.	Machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures. 
	(2)	Any dispute relating to the matters set out in sub-paragraph (1) above shall be resolved using the procedure set out in the IRPA (schedule 1)…”
5.	Paragraph 4 of the Voluntary Agreement headed ‘General’ provides in its material parts:

“(1)	The parties intend that this agreement shall constitute a legally enforceable contract.
(2)	Notwithstanding the other provisions in this agreement the POA recognise the Secretary of State’s right to set the budget and to direct changes in the operation of the Prison Service.
(3)	Nothing in this agreement shall prejudice any discretion of the Secretary of State under Statute or effect any of his rights, powers and privileges arising by virtue of any Statute.
(4)	In order to facilitate consultation on matters covered within paragraph 3 (a-f) which bear on the work of grades for which the POA is recognised the parties will follow the procedures in the IRPA (schedule 1) from time to time in force. 
(5)	Consultation on national policy and procedures that directly affect staff will be dealt with through the Prison Department Whitley Council procedures.
(6)	Both parties commit to respond promptly to proposals put to them by the other party and to adhere to the timetable set out in the IRPA (Schedule 1).
(7)	Both parties accept that national instructions and agreements take precedence over local agreements, instructions and action.
(8)	For the purposes of this agreement a matter is exclusive to Prison Service staff if it is a matter in respect of which the Director General of the Prison Service exercises delegated authority.
(9)	Pending the outcome of any negotiation, conciliation or arbitration conducted under the provisions of this agreement both parties will maintain the “status quo”.  The Prison Service will not impose any disputed change whilst the matter is subject to negotiation, conciliation or arbitration, under the provisions of this agreement except in cases of clear operational emergency as sanctioned by the Director General or Deputy Director General. 
(10)	In the event of a breach of this agreement by the POA, the Prison Service may take action, in court, including seeking Injunctive Relief.  In the event of a breach of this agreement by the Prison Service the POA may take action, in court, including seeking a Declaratory Order.
(11)	The POA agrees that it will 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 this agreement or otherwise, which would have the effect of disrupting the operations of the Prison Service.  Both parties will use their best endeavours to prevent any form of industrial action. 
(12)	For the purposes of this agreement the operation of the Prison Service shall include any work that contributes to the operation of the Prison Service.
(13)	In the event of a dispute between the parties as to whether action which is in progress, or is or may be intended or proposed, would have the effect of disrupting the operations of the Prison Service, the question will be decided by the Secretary of State whose decision will be final.  A written and reasoned explanation will be given to both parties as soon as it reasonably possible”. 

6.	Initially the Prison Service took the view that the PSI abolishing mandatory training was outside the terms of the VA, but that has not been the position before the Court and it was not a position which was maintained throughout the discussions which did take place, to which it is necessary now to come.
THE FACTS
7.	By a letter dated the 17th October 2002 which was sent to each of the unions representing employees of the Prison Service, including the POA, the Prison Service gave notice of a decision in principle to cease to prescribe mandatory training centrally and to devolve to governors and heads of group the responsibility to determine what training their staff should undertake.  A copy of the draft PSI was enclosed and the letter sought comments.  

8.	The letter also made reference to “other initiatives to strengthen and support the local and area training management function” and stated in connection with those that these initiatives “will involve extensive consultation with operational managers, training managers and representatives of HQ groups, and with unions”.  The letter also expressed the view that the PSI made no difference to the availability of training or to the strategic importance of any particular type of training but simply located the decision-making process at the appropriate place, with the business manager.  It made reference to the PSO’s and Performance Standards which would be affected.  This would give rise to a specific need for consultation.  The letter concluded in these terms:

“I would be grateful if any comments could reach me by 15th November.  If you would like to meet to discuss the issue, I would be grateful if you could let me know so that the meeting could be arranged within this timeframe.
Concurrently with consulting trade unions, we are also consulting policy groups on detailed amendments to the PSI’s annexes.  Once we have your views, and their amendments, we will submit the PSI to the Board for approval”.
9.	It is possible, owing to changes in the POA’s executive team, that the letter did not come to the attention of Mr Mark Freeman as soon as it might.  It is accepted Mr Freeman saw a copy of the draft PSI about one week before a Training Forum on 6th November.  Mr Brown, counsel for the POA, submitted that the letter did not amount to the commencement of any meaningful consultation within the meaning of the VA and that the Training Forum was an inappropriate occasion for consultation required by the VA to take place.  

10.	There is nothing in the VA which sets a requirement for consultation to occur within any set framework.  There is nothing which appears to the Court to be inappropriate about taking the opportunity which the Training Forum offered.  The Agenda scheduled the topic and union representatives other than Mr Freeman made representations.  The record shows that Mr Freeman concurred with the view expressed by the Prison Governor’s Association (the “PGA”) representative.  For completeness, I should add that there was no merit in Mr Brown’s argument in connection with the consultation invited by the 17th October letter.  It plainly invited comments on the draft PSI.  It is fair to observe the timeframe was tight, but the record shows that where a union wished for more time, an extension was granted.  The POA did not ask for more time. 

11.	The PGA maintained its opposition.  By a letter dated 15th November the General Secretary of the PGA objected and sought an extension of four weeks.  By letter dated 26th November the Group Assistant Secretary (Mr Poyner) of the Public & Commercial Services Union (PCS) lodged detailed representations.  The letter was copied to Mr Freeman.

12.	By the 23rd December 2002 Mr Freeman must have been well aware of the range of issues being canvassed.  By letter dated 23rd December he wrote to the Defendant’s representative, Mr Seddon.  He could, had he wished to do so, have advanced extended representations.  He did not.  He simply recorded the fact that he had voiced opposition, stating:

“Along with others present, i.e. PGA, we raised similar issues such as the legality of the abolition. 
Would you please give me an update as to the current thinking within the Service on this issue”.
	I read this letter as a statement of alignment by the POA with the views expressed by the PGA.  It was understood as such by the Defendant.  By letter dated 30th December, Mr Seddon responded:

“The draft PSI is currently back with the Prison Service Management Board for its consideration and approval.  It is more or less the same as the version attached to my letter of 17 October.
We set out the views of the POA, PGA and PSTUS in the covering submission to the Board.
Without prejudice to its general objections in principle, PSTUS also made some comments on specific details of the PSI; some of which we have accommodated in the revised draft”.
	In my judgment, this was an appropriate reply to Mr Freeman.  His letter called for no more.  Additionally he received a copy of a detailed reply by Mr Seddon to Mr Poyner.

13.	The PSI was issued on 4th February 2003.  Its issue would appear to have prompted the direct intervention of Mr Colin Moses (National Chairman of the POA).  It seems likely that the Prison Service underestimated the depth of feeling within the POA about the way in which the consultation and the lead up to the PSI had been handled.  Mr Moses’ objections were voiced to the Director of Personnel, Mr Hadley.  He responded by letter dated 19th February 2003 after they had met the previous day.

14.	Mr Brown replied upon a particular passage in the letter as an admission on the part of the Defendant that the VA had been breached. 

15.	Mr Hadley recorded Mr Moses’ position in connection with the consultation as follows:-

“There were concerns voiced [by the POA] around the fact that the PSO impacts on a range of other documents and the POA have not had the opportunity to fully consider that impact.  I accepted that criticism and also that this was largely as a result of a judgement that the issue was outside the scope of the Voluntary Agreement.  That judgment was, I accepted, arguable and I went on to say that I was prepared to accept that this issue was within the scope of the Voluntary Agreement.  Having said that, I also accepted that further in depth discussions should take place in relation to the detail of the PSO”.
16.	Mr Moses sought a suspension of the PSI at the meeting on the 18th February.  In his view, suspension was required in order to maintain the status quo.  By the letter dated 19th February Mr Hadley informed him that it would not be suspended.  Thereafter further meetings took place but agreement could not be reached.  A “failure to agree” was signed.  The dispute went to ACAS but there was no settlement.  It would have been open to the POA to have initiated arbitration proceedings, but it chose not to do so.  It claimed judicial review.

THE DIFFERENCES BETWEEN THE PARTIES

17.	The POA have had the following concerns about events:-

(1)	the possibility that the change might result in training not being done;

(2)	the possibility that the change might lead to training being regarded as of marginal significance;

(3)	the possible impact of the change on other things;

(4)	its desire to wish to discuss the detail;

(5)	its perception that the VA had been by-passed;

(6)	its belief that the status quo required suspension.

18.	As to points (1) and (2) in paragraph 17 above, legitimate as they are as observations, they do not require a great deal of elaboration and they have been noted and can (I have no reason to doubt that they “will”) be taken into account in the implementation of the new process.  As to (3), some changes were foreshadowed in the letter dated 17th October.  It seems to me the process is a continuing one and as and when there is a need for consultation, it can take place.
Points (4), (5) and (6) of paragraph 17 above
19.	The Court is not concerned to find fault or attribute blame.  That said, two factors may well have increased the measure of misunderstanding.  The content of the PSI was capable of being “a change to policy or procedures” significantly affecting “staff at national, area or local level…” (clause 2(3) VA) and it may have been better for this to have been clearly acknowledged at the outset.

20.	That said, the POA were offered two opportunities for consultation, by the letter dated 17th October and at the Training Forum, which it let pass, making only formal and unparticularised objection.  Again, it had time to reflect.  It could have asked for an extension of time, but did not.  It could have followed the example of Mr Poyner and written at length.  It did not. 

21.	Clause 5(6) imposed an obligation on both parties to “respond promptly to proposals”. The POA should have done so.  If it wished to discuss the detail, that request should have been made before the PSI was issued.  If it regarded the opportunity to consult as inadequate and a deliberate attempt to bypass the VA it should have made the position clear before the PSI was issued.  It could not have been in doubt that the PSI, being before the Board before the end of the year, might be issued at any time. 

22.	It should be noted that the definition of “consultation” in the Glossary of Terms forming part of the VA is as follows:

“The process where one party asks the views/opinions of another party.  Where any views/opinions submitted by a party are not accepted then they should be informed of the reason for non acceptance”.
	For this to have practical and sensible effect the “views/opinions” must be such that they call for a response and reasoned non-acceptance.  The POA’s “views/opinions” on the PSI were not sufficiently reasoned until after the issue of the PSI.

23.	The Glossary defines “status quo” as:

“The practices or behaviour which had been previously agreed, or at the time the FTA was registered, were custom and practice”. 
	The evidence is not focused on the issues arising from this definition.  It is not possible to determine what had been the subject of “agreement”, nor to conclude on “custom and practice” at the date of the FTA.

24.	In the absence of such evidence it can only be observed that having regard to the significant change in the level of objection by the POA, after the issue of the PSI, there was a basis for refusing to suspend it after issue.

25.	Clause 6(11) of the VA states:

“(11)	If no agreement is reached following conciliation either party may refer the matter to the DDG of the Prison Service and the General Secretary of the POA for them to decide whether or not to refer the matter to Arbitration.  In the event that neither party refers the matter to arbitration then the management’s position will be deemed to have been accepted”.

	It was not referred.

26.	Having regard to clause 6(11), it is regrettable that an application for judicial review was launched.  Had the single judge had his notice drawn to the clause it is doubtful he would have granted permission.  He took the view the facts required investigation.  Having considered them I am unable to conclude that “consultation” within the meaning of the VA was not offered, although at the time of the offer the Defendant may have believed the issue was outside the VA.

27.	This vulnerability, such as it was, Mr Hadley accepted.  Rather than calming the situation by an expression of conciliation, he seems to have provided fuel to the POA’s sense of grievance.  The Court can do no better than to draw attention to clause 2(2) of the VA:

“The agreement is underpinned by a partnership approach to solving industrial relations issues with both parties being committed to the success of the service….”.
28.	This application for judicial review is dismissed.
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MR JUSTICE NEWMAN:  For the reasons given in the judgment which is now handed down, the application for judicial review is dismissed.
MR GRODZINSKI:  My Lord, I am grateful.  I appear this morning for the defendant in this case.  Mr Pilgerstorfer replaces Mr Brown.  
One thing that the parties have managed to agree on this occasion is an order arising out of your Lordship's judgment, and a copy ought to be up on the bench.
MR JUSTICE NEWMAN:  Thank you.  It looks excellent.  Thank you very much.  I am very grateful.  Anything else required of me?
MR GRODZINSKI:  Nothing else.
MR JUSTICE NEWMAN:  All I would like to say is that I hope the voluntary agreement works in the future.  It does seem to me to be a very important part of the continuing good relationship of the Prison Service and the Prison Officers Association.  It is full of common sense, and I hope it works.
MR GRODZINSKI:  For our part, we echo that. 
MR JUSTICE NEWMAN:  Thank you.
MR PILGERSTORFER:  On our part also.
MR JUSTICE NEWMAN:  Thank you both very much.