European Court of Human Rights
John Hendy QC & Sandy Fredman QC for the Applicants.
Section 127 of the Criminal Justice and Public Order Act 1994 makes it an offence to induce prison officers to undertake industrial action. Nor do they have the right to free collective bargaining over pay, which is determined by the Secretary of State. As a consequence, prison officers are in an unusual situation as regards industrial action and collective bargaining, over pay and over other matters.
In the upcoming case of POA v UK, the applicants seek a declaration that the UK is currently in breach of Article 11 of the Convention, the right to 'freedom of peaceful assembly and . . . association, including the right to form and to join trade unions for protection of [one’s] interests'. The applicants also seek an order for damages for this breach. The Court is asked to determine whether the prohibitions on inducing prison officers to take industrial action; their right to take industrial action; and on free collective bargaining over pay, along with prison officers’ bargaining situations more generally, are Article 11 compliant. Interventions have been received by the European Trades Union Confederation and the Trades Union Congress.
The applicants argue that the right protected under Article 11 requires that unions be able to protect their members' interests. If unions cannot induce their members to strike, this ability is undermined. This situation is exacerbated by the absence of an adequate disputes resolution procedure, in particular as regards disputes over pay. If prison officers are not able to organise industrial action, this is in breach of Article 11(1). Alternatively, the UK Government’s failure to provide adequate compensatory measures constitutes a breach of Article 11(1). Nor is it saved by Article 11(2): this interference with Article 11(1) is neither necessary nor proportionate, and hence not lawful. Even were a restriction of prison officers' Article 11 rights lawful in the public sector under Article 11(2), this does not apply to prison officers in the private sector ('prison custody officers'). Furthermore, the Government is under a duty to ensure that prison custody officers’ Article 11 rights are secured. If the restriction on the right to industrial action does not constitute an unlawful interference with Article 11 for those in the private sector, then the failure to ensure effective compensatory measures does.
The Government denies that the right to strike is guaranteed under Article 11. It emphasises that the restriction under Section 127 CJ&POA 1994 is a limited restriction. It serves an important purpose: the restrictions on strike action exist to protect the safety of other people. Alternatives are, the Government argues, unworkable. Furthermore, such restrictions on strike action as exist do not prevent prison officers from asserting their right to protest at Government action. The Government must balance the rights of prison officers to collective bargaining under Article 11, against the rights of prisoners, other staff working in prisons, and members of the public. This is to be considered within the context of a wide 'margin of appreciation' which European jurisprudence characteristically accords to member states on such issues. Consequently, the Government claims that the application is ‘manifestly ill-founded and inadmissible’.
As the underlying law is clear, this application is proceeding direct to the ECHR.
