Report in which the committee requests to be kept informed of development - Report No 336, March 2005

Case No 2383 (United Kingdom of Great Britain and Northern Ireland) - Complaint date: 20-AUG-04 - Closed

Allegations: The complainant alleges that the legislation deprives prison officers of the right to take industrial action and that they do not enjoy adequate compensation guarantees to protect their interests in the absence of the right to strike

1. 722. The complaint is contained in a communication from the Prison Officers’ Association (POA) dated 20 August 2004.
2. 723. The Government replied in a communication dated 1 November 2004.
3. 724. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 725. In its communication of 20 August 2004, the complainant states that the statutory prohibition of industrial action by prison officers found in section 127 of the Criminal Justice and Public Order Act 1994 (the 1994 Act – see annex) constitutes a breach of the right to strike – as prison officers do not exercise authority in the name of the State and do not provide essential services in the strict sense of the term – and that no adequate compensatory measures have been put in place whereby prison officers or their union can ensure that their interests are protected in the absence of a right to strike.
2. 726. The complainant states that, although it had been able to stage industrial action for over half a century, since 1993 this right has been restricted as a result initially of certain court decisions and then section 127 of the 1994 Act. The effect of section 127 is to make it unlawful in all circumstances for prison officers to call for a strike or other form of industrial action. Such a call would inevitably induce a prison officer to withhold his services or to commit a breach of discipline and would therefore expose the union to suit by the Secretary of State under section 127(3). Such suit could include an action or an injunction for damages.
3. 727. The complainant adds that, although there are proposals to amend section 127 so that it does not apply to England, Wales and Scotland, such proposals are premised on the existence of a legally binding no-strike agreement between the complainant and the public sector employers in England, Wales and Scotland. In respect of Northern Ireland, where there is no legally binding no-strike agreement, the Government has reaffirmed its intention to retain section 127. Moreover, as there is no legally binding no-strike agreement covering prison officers working in the private sector, there is now some doubt as to whether prison officers in the private sector will be included in the proposed exemption from section 127 or whether, like the prison officers in Northern Ireland, they will continue to be subject to section 127. The complainant states that the granting of the right to strike should not be premised on an agreement not to use that right because the voluntary nature of the agreement is undermined if there is a threat to reinstate the criminal prohibition should the agreement be terminated.
   • The exercise of authority in the name of the State
4. 728. The complainant argues that the restriction of the right to strike of prison staff on the basis that the latter exercise authority in the name of the State is not justified. In the first place, prisoner custody officers who are employed by private companies owe their duty of loyalty to their employer, take their instructions from their employer and act in the name of their employer. They are not public employees, and they are not subject to the Code of Discipline which applies to public sector prison officers, nor do they have the powers of a constable which are afforded to public sector prison officers.
5. 729. In the second place, prison officers in the public sector do not exercise authority in the name of the State: first, because they perform the same work as private sector prison officers and it would be anomalous to treat one group as exercising authority in the name of the State and the other as not doing so; second, they are not in a position to take decisions on behalf of the State but simply to be carrying out public functions. Prison officers are under a strict code of discipline, and are under the orders of the prison governor but do not actively exercise authority in the sense of making decisions on behalf of the State.
6. 730. The complainant emphasizes that this contention is not changed by the fact that prison officers in the public sector were given the power, authority, protection and privileges of a constable by section 8 of the Prison Act 1952. The common law powers of arrest and search which belong to a constable are now heavily regulated by statute and are almost exclusively in the hands of the police, thus merely enabling prison officers to lawfully apprehend an absconding prisoner. Even in exercising this function, prison officers remain under the orders of the prison governor and are bound by the prison code of discipline. Moreover, prison officers in Scotland do not have the powers of a constable and it would be anomalous to regard prison officers in England, Wales and Northern Ireland as exercising authority in the name of the State on the basis of their powers of a constable, while prison officers in Scotland are not considered to exercise such authority.
   • The provision of essential services
7. 731. The complainant considers that the prison service is not an essential service in the strict sense of the term. Interruption of the prison service by industrial action has caused discomfort and inconvenience by obliging prisoners to remain in their cells longer than they should or depriving them temporarily of various prison activities, but this has not endangered their life, personal safety or health.
   • Compensatory guarantees
8. 732. The complainant submits that even if it were held that prison officers are public servants exercising authority in the name of the State, so that abridgement of the right to take industrial action is justified, the necessary condition for such abridgement, namely, the provision of adequate compensatory guarantees, does not exist.
9. 733. The complainant states that there is no compensatory mechanism in the private sector. The Pay Review Body set up for prison officers in England and Wales does not provide pay reviews for the nine private sector prison establishments and there are no procedures for resolving collective disputes or grievances as found in the Industrial Relations Procedure Agreement in relation to public sector prisons in England and Wales.
10. 734. In addition to this, the complainant notes that in England and Wales, two forms of machinery for settling terms and conditions in the prison service have been established. Pay is determined by the Pay Review Body (established only in March 2001 although the power to establish it is found in the Act of 1994). Other disputes are processed through the Industrial Relations Procedure Agreement (IRPA), also known as the Voluntary Agreement. In Northern Ireland, the Pay Review Body (set up in February 2001 and having given its first report in February 2003) has recommendatory powers only and there is no mechanism for resolving non-pay disputes.
11. 735. In Scotland, there is no Pay Review Body. There is a legally binding disputes procedure agreement, similar to that in England and Wales, which refers to an interim procedure regarding pay. There is also a “partnership agreement”.
12. 736. With regard to the Pay Review Body which functions in England and Wales, the complainant states that this Body is found in the 1994 Act, section 128. Its remit is “to examine and report on such matters relating to the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, as may from time to time be referred to them by the Secretary of State” (Regulation 2 of the Prison Service (Pay Review Body) Regulations, 2001). Its recommendations and advice are based on its independent judgement, but it has the duty to give the representative organizations the opportunity of submitting evidence and making representations (Regulation 5 of the Prison Service (Pay Review Body) Regulations, 2001). These organizations include the prison service, the complainant (POA) and the staff. The Pay Review Body does not provide pay reviews for the nine private sector prison establishments.
13. 737. The complainant submits that the Pay Review Body fails to fulfil the criteria of adequate compensatory measures in three major respects. Firstly, its members, including the chairman, are appointed by the Prime Minister (Schedule to the Prison Service (Pay Review Body) Regulations, 2001). Secondly, it has no power to make binding pay awards. Its remit is strictly to report and recommend. Regulation 8 of the Prison Service (Pay Review Body) Regulations, 2001, provides that “where, following the reference of any matter to them the Pay Review Body have made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit”. Thirdly, there is no duty on the Minister to implement the award promptly or at all. The first report of the Pay Review Body (presented to Parliament in January 2002) recommended a general increase in basic pay, representing an annual rise of 4.8 per cent with effect from 1 January 2002. However, although the recommendations were accepted in principle, it was decided that the general pay recommendation would be paid in two instalments. Thus, only 3.5 per cent was awarded in January 2002 and the balance in January 2003 (Prison Service Pay Review Body, Second Report on England and Wales 2003, paragraph 1.3-4).
14. 738. The complainant further adds that in England and Wales disputes apart from pay are dealt with through the Voluntary Agreement entered into on 11 April 2001 between the prison service, acting on behalf of the Secretary of State for the Home Department, and the complainant. The aim of the agreement is to establish procedures for resolving all collective disputes or grievances except for those concerning pay, individual grievances and disciplinary action. If the parties fail to agree informally, the matter proceeds to conciliation by the Advisory Conciliation and Arbitration Service (ACAS). If no agreement is reached following conciliation, either party may refer the matter to the director general of the prison service and the general secretary of the POA for them to decide whether or not to refer the matter to arbitration. The arbitrator is nominated by ACAS. However, the arbitrator’s award is not fully binding on the Secretary of State. Paragraph 14 of the Schedule to the Voluntary Agreement gives the Secretary of State the power to overrule the award of the arbitrator for reasons of national security or public interest. To exercise the power, the Secretary of State must give a reasoned explanation to the House of Commons or the Prime Minister. If the Secretary of State does not exercise his power to overrule the award, the award will be implemented.
15. 739. The complainant adds that the Voluntary Agreement is unique in British industrial relations terms in being legally enforceable (paragraph 4(1)). Remedies are not, however, symmetrical. In the event of a breach by the complainant, the prison service may apply for an injunction. In the event of a breach by the prison service, the complainant may only seek a declaratory order (paragraph 4(10)). The asymmetry of the Voluntary Agreement is further underscored by the inclusion of a wide-ranging no-strike undertaking by the complainant. Under paragraph 4(11), the complainant agrees not to induce, authorize or support any form of industrial action by any of its members relating to a dispute concerning any matter, whether covered by the agreement or not, which would have the effect of disrupting the operations of the prison service. Under paragraph 4(13), if there is a dispute about whether the action would have the effect of disrupting operations of the prison service, the question will be decided by the Secretary of State, whose decision is final. The no-strike clause is wider than that of section 127 of the 1994 Act in that the latter applies only to inducements to a prison officer to withhold his services as such an officer or to commit a breach of discipline, whereas clause 4 refers to any disruption of the operations of the prison service. The result is that in return for a comprehensive surrender of the right to strike, the complainant’s only resort is for declaratory relief from the court in the event of breach by the prison service.
16. 740. The complainant notes that it entered into the Voluntary Agreement at a time of weakness when its bargaining strength was not commensurate with that of the prison service (not least because of the statutory bar on industrial action). It has considered (and might consider again) giving notice to terminate the Voluntary Agreement for the reason that it is unbalanced in the respects outlined above. Until such notice, if given, expires, the POA is obliged to comply with the terms of the Voluntary Agreement. However, because of the statutory bar on industrial action contained in section 127, the complainant continues to be deprived of an essential means of applying industrial pressure to negotiate a better or, indeed any, replacement agreement.

B. The Government’s reply

1. 741. In a communication dated 1 November 2004, the Government states in summary that prison officers are pubic servants who exercise authority in the name of the State and/or are engaged in the provision of essential services. It is therefore permissible under Conventions Nos. 87 and 98 to prohibit them from taking strike action and, in any event, adequate measures have been taken to compensate them for this limitation on their freedom of association.
2. 742. The Government explains that the background to the enactment of sections 126-128 of the Criminal Justice and Public Order Act, 1994 (the 1994 Act) was the industrial action taken at a number of prisons throughout the United Kingdom in the late 1980s and early 1990s, with an extremely negative effect both on the prisoners and the administration of justice. Section 126 of the 1994 Act specified that prison officers are “workers” and, accordingly, the complainant (POA) is “an organization of workers” and therefore a trade union as defined under section 1 of the Trade Union and Labour Relations (Consolidation) Act, 1992 (the 1992 Act). Thus, the POA and its members have the same freedom of association as any other worker under UK law. The effect of section 127 of the 1994 Act is to create a statutory duty, which is owed to the relevant minister or ministers, not to induce a prison officer either to withhold his services or to commit a breach of discipline. The section therefore creates a statutory duty not to organize industrial action in the prison service. This prevents the organizing of strike action by prison officers whether they are employed by the State or by private sector companies to which certain of the functions of the prison service have been contracted out. The prohibition also applies in all parts of the United Kingdom. Section 128 of the 1994 Act finally paved the way for the creation of the Prison Service Pay Review Body.
3. 743. The Government adds that in England, Wales and Scotland the continued existence of section 127 has, until recent months, engendered a significant improvement in relations between the Government and the complainant, and a stable employee relations environment. Ongoing good relations led, in England, Wales and Scotland, to the establishment of voluntary agreements, which include a provision preventing the organizing of industrial action by prison officers and procedural agreements on the resolution of trade disputes (in England and Wales the Industrial Relations Procedure Agreement (IRPA), and the Voluntary Industrial Relations Agreement (VIRA) in Scotland). The Government then established a Pay Review Body in England, Wales and Northern Ireland which was inextricably linked to the introduction of the voluntary agreements in that the prison service gave up the right to set pay increases in exchange for the complainant’s agreement not to organize industrial action.
4. 744. The Government adds that on 27 January 2004 the complainant gave the required one-year’s notice to withdraw from the Voluntary Agreement covering England and Wales. The new voluntary agreement, which will be known as the Joint Industrial Relations Procedural Agreement (JIRPA), has been mandated through a ballot of the complainant’s membership but has yet to be signed by both signatories. In recent months, the complainant has shown its intention to take industrial action (against the principles of the present Voluntary Agreement and the future JIRPA) over issues such as health and safety of its members in the Northern Ireland Prison Service and also the recent indication of the implementation of market testing.
5. 745. The Government indicates that its current position is that it considers that the work of prison officers and the circumstances in which it is carried out are such that industrial action in the prison service is not appropriate, particularly given the alternative means which are available for the resolution of disputes. It would, however, prefer to achieve this objective by voluntary means and has, therefore, indicated its willingness to repeal section 127 in relation to those parts of the prison service where there is in place a voluntary agreement under which the complainant undertakes not to organize industrial action. Difficulties have, however, arisen because the complainant has given notice of termination of the Voluntary Agreement in force in respect of England and Wales, and the JIRPA has not yet been signed. There is no voluntary agreement in place in Northern Ireland, and for this reason it is not proposed to repeal section 127 in relation to Northern Ireland. In the absence of any applicable voluntary agreement, section 127 will also continue to apply where certain of the functions of the prison service have been contracted out to private sector companies.
   • The exercise of authority in the name of the State
6. 746. The Government considers that there can be no doubt that prison officers fall into the category of public servants exercising authority in the name of the State, on the basis of both the functions which they perform and the special powers and protection which have been conferred on them so that they can carry out their work. Moreover, there is no material distinction in this regard between prison officers in the employment of the Crown and prisoner custody officers employed by private sector companies to whom certain of the functions of the prison service have been contracted out.
7. 747. As regards the functions performed by prison officers and prisoner custody officers, the Government holds that they are the agents by which the State effects the deprivation of liberty of its subjects who are awaiting trial or have been convicted of criminal offences whilst at the same time ensuring their well-being. In each case, they assist in the implementation of the decision of a court that the individual should be held in custody. In the context of the prison, they are responsible for ensuring that the prisoners do not escape and do not injure each other, or themselves, or the staff or visitors to the prison. They also exercise powers over the prisoners in relation to their daily activities, the degree of liberty which they enjoy within the prison and their privileges and entitlements. Prisoner custody officers also have an important role in accompanying prisoners to and from police stations and courts, and they are responsible for preventing the prisoner from effecting an escape or otherwise injuring members of the public or the court staff or the judiciary. The Government concludes that, therefore, prison officers and prisoner custody officers have a central role in the administration of justice and, in this capacity, exercise authority in the name of the State.
8. 748. The Government adds that prison officers are given special powers to enable them to do their work. In the case of prison officers employed by the Crown, when performing their duties they have the powers of a constable (a police officer), including common law powers of arrest and search. They also have the protections afforded to a police officer. An assault on a prison officer constitutes an assault on a constable in the execution of his duty and attracts a criminal sanction. In the case of prisoner custody officers employed by private sector companies, special powers are conferred on them by statute in the Criminal Justice Act, 1991. They must be approved and certified by the Secretary of State in relation to both custodial duties and escort functions. Their powers include powers to search the prisoner, to prevent his escape from lawful custody, to ensure good order and discipline on his part and to give effect to any directions as to the prisoner’s treatment which are given by a court. They also have duties to prevent or detect crime by prisoners as well as to attend to their well-being. Prisoner custody officers have the right to use reasonable force where necessary and they are also given special protection by the criminal law against assault by prisoners and wilful obstruction. Thus, the Government concludes both prison officers employed by the Crown and prisoner custody officers employed by a private sector company exercise authority in the name of the State and have special powers and protections conferred on them by the law in order to do so. It is quite apparent that prison officers do take “decisions on behalf of the State” – a criterion used by the complainant in its submissions – as they are responsible for making decisions which affect the activities, the liberty and the other rights and privileges of prisoners, including decisions about discipline.
9. 749. Moreover, according to the Government, it does not follow from the fact that prison officers have a right to organize that they must also have a right to strike. There is no illogicality and it is indeed in conformity with freedom of association principles to hold that prison officers should be entitled to form and join trade unions and participate in trade union activities, as they are under United Kingdom law, whilst at the same time holding that they are not entitled to take strike action.
10. 750. As for the position in Scotland, the Government indicates that, although prison officers do not have the powers of a constable, they have the same functions as prison officers in England and Wales and are provided by statute with analogous powers in order to perform their duties effectively.
    • The provision of essential services
11. 751. The Government states that it is self-evident that the interruption of the service provided by prison officers and prisoner custody officers would endanger the life, personal safety or health of part of the population – primarily the prisoners, but also the wider public. Self evidently, a significant proportion of the prison population comprises individuals who are a danger to others. An important part of the role of the prison officer is to ensure that, for example, prisoners are prevented from injuring fellow prisoners or other persons present in the prison, that they are prevented from escaping (in order to ensure the protection of the lives and personal safety of at least part of the population), that the health and well-being of prisoners is ensured (including by preventing prisoners from committing self-harm or suicide or preventing the trafficking and consumption of illegal drugs and alcohol), that prisoners have access to activities to ensure their general well-being, their personal safety, their health, their rehabilitation and ultimate resettlement in the community, that prisoners are well fed, and receive appropriate medical treatment, education, training, exercise and visits from their families.
    • Compensatory guarantees
12. 752. The Government submits that adequate compensatory measures are in place. In England and Wales the voluntary agreement between HM Prison Service and the complainant, which includes the IRPA, governs all matters of dispute other than pay and individual grievance or disciplinary issues. Pay is a matter for the Pay Review Body and individual grievance or disciplinary issues are matters for procedures set out in the staff handbook. In Scotland, pay is negotiated through collective bargaining arrangements and the Pay Review Body mechanism does not apply. Disputes may be referred to the Advisory, Conciliation and Arbitration Service (ACAS) and ultimately binding arbitration using the VIRA dispute resolution mechanism.
13. 753. As to the complainant’s criticisms of the IRPA, the Government considers that they are not significant. The Government states that the award of the arbitrator is binding on the Secretary of State subject only to a power to overrule the award for reasons of national security or public interest. This power has never been invoked in practice and it is difficult to envisage circumstances in which it would be, given that the arbitrator is nominated by ACAS and given that it is extremely unlikely that a decision of the arbitrator will affect national security or be contrary to the public interest. Indeed, this has not occurred in any of the 31 arbitrations which have taken place under this provision.
14. 754. As to the argument that the complainant may only seek a declaratory order as opposed to an injunction, the Government holds that this is both misconceived and immaterial. Firstly, paragraph 4(10) of the IRPA states that the relief which the complainant may seek includes seeking a declaratory order. It does not limit the relief to be sought and, in any event, the remedy in the case of breach is a matter for the discretion of the court. Secondly, in any event a declaratory order is a binding declaration as to the rights of the parties and it is inconceivable that the Government would act contrary to such an order. There is therefore no material difference between such an order and an injunction.
15. 755. As far as the Pay Review Body is concerned, the Government indicates that the fact that members of the Pay Review Body are appointed by the Prime Minister does not impair their independence or create any risk of bias. There are many circumstances in which arbitrational bodies have their members appointed by one arm of the State, and these members must then adjudicate in disputes in which another arm of the State is a party. In all these circumstances, the body in question has carried out its work fairly and impartially. Although the recommendations of the Pay Review Body are not binding in law, in practice they would only be departed from in exceptional circumstances. The practice and procedure of the Pay Review Body is such that adequate, impartial and speedy conciliation can be, and has been, implemented, leading to a result satisfactory to both parties. As for the complainant’s statement that there is no duty on the minister to implement the award promptly or at all, the Government states that although the recommendations of the Pay Review Body are not legally binding, they are complied with in practice. With regard to the reference made by the complainant to the decision to implement the 2002 recommendation in two stages, the Government notes that the substance of the recommendation was implemented by the Secretary of State in principle and in practice. The fact that budgetary powers remain, out of necessity, with the legislative authority, resulted in an alteration of the practicalities of the recommendation, but ultimately did not prevent compliance with the terms of the award handed down by the Pay Review Body.
16. 756. The Government concludes by recalling that sections 126-128 of the 1994 Act are linked and cannot be judged independently of each other. The Pay Review Body takes away from the prison service the discretion to determine the percentage increase in pay awards and has since its formation, consistently determined that there should be above inflation pay awards in the prison service. The Government considers, therefore, that there are sufficient compensatory measures in place to justify the prohibition on strike action effected by section 127 of the 1994 Act.

C. The Committee’s conclusions

1. 757. The Committee notes that the present case concerns allegations that section 127 of the Criminal Justice and Public Order Act 1994 deprives prison officers of the right to take industrial action and that they do not enjoy adequate compensation guarantees to protect their interests in the absence of the right to strike.
2. 758. The Committee notes that the complainant claims, and the Government agrees, that section 127 of the 1994 Act makes it unlawful under all circumstances for prison officers to call for a strike or other form of industrial action. Such a call would inevitably induce a prison officer to withhold his or her services or to commit a breach of discipline and would expose the union to suit by the Secretary of State, including a possible action or an injunction for damages. Section 127 is applicable to both prison officers employed by the State and prisoner custody officers employed by private sector companies to which certain of the functions of the prison service have been contracted out. The Committee notes that the Government is currently considering amending section 127 on the premise that voluntary no-strike agreements have been reached in England, Wales and Scotland between the complainant and the prison authorities. However, as such agreements do not exist in Northern Ireland and in respect of the nine prisons where certain of the functions have been contracted out to private sector companies, the Government may maintain the prohibition of section 127 in this respect.
3. 759. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526].
4. 760. The Committee notes that, according to the complainant, the prison officers’ right to strike should not be restricted as they do not exercise authority in the name of the State and do not provide essential services in the strict sense of the term. Moreover, even if the restrictions on the right to strike of prison officers are justified, there are no adequate compensatory guarantees in this respect. The Committee also notes that the Government rejects these allegations and submits that prison officers exercise authority in the name of the State and provide essential services in the strict sense of the term while there are adequate compensatory guarantees for the restriction of their right to strike.
   • The exercise of authority in the name of the State
5. 761. The Committee notes that, according to the complainant, prison officers employed by the State or prisoner custody officers employed by private sector companies do not exercise authority in the name of the State. With regard to prisoner custody officers who are employed by private sector companies to which certain of the functions of the prison service have been contracted out, the complainant points out that they owe their duty of loyalty to their (private) employer, are not subject to the code of discipline applicable to public sector prison officers and do not have the powers of a constable. With regard to prison officers in the public sector, the complainant points out that they perform the same work as those of the private sector and it would be anomalous to treat one group as exercising authority in the name of the State and the other as not doing so. Moreover, they are not in a position to take decisions on behalf of the State but simply to carry out public functions. As for their power as constable, the complainant considers that these powers are now heavily regulated by statute and are almost exclusively in the hands of the police, merely enabling prison officers to lawfully apprehend an absconding prisoner. Finally, prison officers in Scotland do not have the powers of a constable and it would be anomalous to treat other prison officers as exercising authority in the name of the State on the basis of their powers as constable while prison officers in Scotland are not considered to exercise such authority. Thus, according to the complainant, neither prison officers nor prisoner custody officers exercise authority in the name of the State.
6. 762. The Committee notes that, according to the Government, prison officers fall into the category of public servants exercising authority in the name of the State (without any material distinction between prison officers employed by the State and prisoner custody officers employed by private sector companies to which certain of the functions of the prison service have been contracted out) because they are the agents by which the State effects the deprivation of liberty of its subjects who are awaiting trial or have been convicted of criminal offences. They therefore have a central role in the administration of justice. Moreover, prison officers are given the powers of a constable to enable them to do their work, while special powers are conferred in this respect by statute on prison officers in Scotland and prisoner custody officers employed by private sector companies to which certain of the functions of the prison service have been contracted out. Thus, all prison officers and prisoner custody officers are responsible for making decisions which affect the activities, the liberty and the other rights and privileges of prisoners including decisions about discipline and, in this sense, exercise authority in the name of the State. Finally, according to the Government, it does not follow from the fact that prison officers have a right to organize that they must also have the right to strike.
7. 763. The Committee has considered that officials working in the administration of justice are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions or even prohibitions [see Digest, op. cit., para. 537]. The Committee considers that to the extent that prison officers and prisoner custody officers exercise authority in the name of the State, their right to strike can be restricted or even prohibited.
   • The provision of essential services
8. 764. The Committee notes that, according to the complainant, the prison service is not an essential service in the strict sense of the term, because interruption of this service by industrial action has not endangered the life, personal safety or health of the prisoners, even though it has caused discomfort and inconvenience.
9. 765. The Committee notes that the Government enumerates a list of duties performed by prison officers and prisoner custody officers and argues that it is self-evident that the interruption of this service would endanger the life, personal safety or health of part of the population – primarily, the prisoners but also the wider public.
10. 766. The Committee recalls that to determine situations in which a strike could be prohibited, the criteria which have to be established are the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 540]. The Committee considers that the prison service is clearly one where the interruption of the service could give rise to an imminent threat to the life, personal safety or health of the whole or part of the population, in particular, the prisoners and the wider public.
11. 767. Considering that the prison service constitutes an essential service in the strict sense of the term and that prison officers, as well as prisoner custody officers to the extent that they perform the same functions, exercise authority in the name of the State, the Committee is of the view that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service.
    • Compensatory guarantees
12. 768. The Committee notes that, according to the complainant, even if it were held that abridgement of the right to take industrial action is justified, the necessary condition for such abridgement, namely, the provision of adequate compensatory guarantees, does not exist.
13. 769. With regard to prisoner custody officers employed by private sector companies to which certain of the functions of the prison have been contracted out, the complainant states that there is no mechanism at all to compensate for the limitation placed on their right to strike. The Committee notes that the Government does not provide any information in this respect. The Committee recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [see Digest, op. cit., para. 546]. The Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike, and to keep it informed in this respect.
14. 770. With regard to England and Wales, the complainant states that two forms of machinery for settling the terms and conditions of employment in the prison service have been established. Pay is determined by the Pay Review Body (which has also been set up in respect of Northern Ireland), and other disputes are processed through the Industrial Relations Procedure Agreement (IRPA), otherwise known as the Voluntary Agreement.
15. 771. With regard to the Pay Review Body, the complainant states that its recommendations and advice are based on its independent judgement, but it has the duty to give the representative organizations the opportunity of submitting evidence and making representations. According to the complainant, this body fails to fulfil the criteria of adequate compensatory measures in three major respects: (1) all members of the Pay Review Body, including the chairman, are appointed by the Prime Minister; (2) the Pay Review Body has no power to make binding arbitration awards; (3) there is no duty on the minister to implement the award promptly or at all (the first general pay recommendation of the Pay Review Body which was presented to Parliament in 2002 was according to the complainant implemented through payment in two instalments rather than at once).
16. 772. The Committee takes note of the Government’s indication that: (1) the fact that the members of the Pay Review Body are appointed by the Prime Minister does not impair their independence or create any risk of bias as it is common to have arbitrational bodies which have their members appointed by one arm of the State and then adjudicate in disputes in which another arm of the State is a party; (2) although the recommendations of the Pay Review Body are not binding in law, in practice they could only be departed from in exceptional circumstances; (3) as for the implementation of the 2002 recommendation in two stages, the fact that budgetary powers remain, out of necessity, with the legislative authority, resulted in an alteration of the practicalities of the recommendation, but ultimately did not prevent compliance with the terms of the award.
17. 773. With regard to point (1) above, the Committee notes that the Government does not specify the method (including any relevant guidance or criteria) for the appointment of the members of the Pay Review Body, and recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 549]. With regard to point (2) above, the Committee notes that the Government does not specify which exceptional circumstances might justify a departure from the recommendations of the Pay Review Body. The Committee also observes that the text of Regulation 8 of the Prison Service (Pay Review Body) Regulations, 2001, seems to leave complete discretion upon the Secretary of State as regards the implementation of the recommendations of the Pay Review Body, by providing that “where, following the reference of any matter to them, the Pay Review Body has made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit”. The Committee recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 547]. The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that: (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned. The Committee requests to be kept informed in this respect.
18. 774. As for the Voluntary Agreement, which deals with disputes apart from pay in England and Wales, the complainant states that: (1) the arbitration provided in the Agreement is not binding (paragraph 14 of the Schedule to the Voluntary Agreement gives the Secretary of State the power to overrule the award for reasons of national security or public interest; to exercise this power, the Secretary of State must give a reasoned explanation to the House of Commons or the Prime Minister); (2) although the Voluntary Agreement is enforceable, remedies are not symmetrical: in the event of a breach by the complainant, the prison service may apply for an injunction while in the event of a breach by the prison service, the complainant may only seek a declaratory order. This asymmetry is further underscored, according to the complainant, by the inclusion in the agreement of a wide-ranging no strike undertaking.
19. 775. The Committee notes that, according to the Government: (1) the award of the arbitrator is binding on the Secretary of State subject only to a power to overrule the award for reasons of national security or public interest; this power has never been invoked in practice and it is difficult to envisage circumstances in which it would be; (2) the relief to be sought is not limited to a declaratory order and in the event of a breach the remedy is a matter for the discretion of the court. In any event, a declaratory order is binding and it is inconceivable that the Government would act contrary to such an order. The Committee takes note of this information and expects that the Government will continue to act in line with any declaratory order.
20. 776. With regard to Scotland, the complainant states that there is a legally binding disputes procedure agreement, which refers to an interim procedure regarding pay, as well as a partnership agreement. In this respect, the Government indicates that in Scotland pay is negotiated through collective bargaining arrangements and disputes may be referred to the Advisory, Conciliation and Arbitration Service (ACAS) and ultimately binding arbitration using the Voluntary Industrial Relations Agreements (VIRA) dispute resolution mechanisms. The Committee takes note with satisfaction of this information.

The Committee's recommendations

1. 777. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited, the Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike.
   • (b) The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that:
   • (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and
   • (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned.
   • (c) The Committee requests to be kept informed of developments in respect of the above.

Z. Annex

• Section 127 of the Criminal Justice and Public Order Act 1994:
  1. “(1) A person contravenes this subsection if he induces a prison officer: (a) to withhold his services as such an officer; or (b) to commit a breach of discipline.
  2. (2) The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State …
  3. (3) Without prejudice to the right of the Secretary of State … by virtue of the preceding provision of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any duty mentioned in subsection (2) above, which causes the Secretary of State to sustain loss or damage shall be actionable … against the person in breach.
  4. (4) In this section “prison officer” means any individual who –
     • (a) holds any post, otherwise than as a chaplain or assistant chaplain or as a medical officer, to which he has been appointed for the purposes of section 7 of the [1952 c.52] Prison Act 1952 or under section 2(2) of the [1953 c.18 (N.I.)] Prison Act (Northern Ireland) 1953 (appointment of prison staff);
     • (b) holds any post, otherwise than as a medical officer, to which he has been appointed under section 3(1) of the Prisons (Scotland) Act 1989; or
     • (c) is a custody officer within the meaning of Part I of this Act or a prisoner custody officer, within the meaning of Part IV of the Criminal Justice Act 1991 or Chapter II or III of this Part.
  5. (5) The reference in subsection (1) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed upon him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules.”