New Clause 36 — Amendment of section 127 of the Criminal Justice and Public Order Act 1994

Orders of the Day – in the House of Commons at 1:23 pm on 9th January 2008.

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'(1) Section 127 of the Criminal Justice and Public Order Act 1994 (c. 33) (inducements to prison officers to withhold services or breach discipline) is amended as follows.

(2) In subsection (1), for paragraph (a) substitute—

"(a) to take (or continue to take) any industrial action;".

(3) After subsection (1) insert—

"(1A) In subsection (1) "industrial action" includes the withholding of services as a prison officer and any other action likely to affect the normal working of a prison."

(4) In subsection (4), after paragraph (a) insert—

"(aa) holds any post, other than as a chaplain or assistant chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952 (appointment of prison staff),".'.— [Mr. Straw.]

Brought up, and read the First time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss amendment (a) to the proposed new clause, in subsection (3), leave out from 'officer' to end of subsection.

Government new clause 37— Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994.

Government amendments Nos. 169 and 170.

Photo of David Winnick David Winnick Labour, Walsall North

On a point of order, Mr. Deputy Speaker. Could you confirm that the series of debates that we are about to have on these amendments must be concluded by 2.43 pm?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is absolutely correct, and any time that we take up now will be taken out of that time, so I suggest to the House that we get on with it.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

On Monday, for an hour, I gave a statement, in the course of which I obviously took questions, to set out why the Government have reluctantly felt compelled to come forward with these amendments to the law, which are to be included in the Bill. Let me now set out some of the background. I am of course ready to take interventions from either side of the House, as I always do.

In the 1970s, 1980s and early 1990s, there was, for a variety of reasons, serious industrial action—often not direct strike action but other kinds of industrial action—within the Prison Service, which made the management of the Prison Service extremely difficult and placed public safety at risk, as well as placing the welfare of prisoners in serious jeopardy. The Government of the day did two things. In 1993, they went to court to seek an injunction restraining prison officers under the existing law, which they succeeded in obtaining. Then, in what became the Criminal Justice and Public Order Act 1994, they moved amendments, which became sections 127 and 128 of that Act, to prohibit industrial action by prison officers. At that time, as we were reminded yesterday—and it has been a point that the Prison Officers Association has raised—the Labour Opposition spoke and voted against those amendments. However, I want to make it clear that in doing so, my right hon. Friend Alun Michael did not give an undertaking to repeal section 127 and made it clear that there could be circumstances in which we would accept that such a restriction on industrial action in the Prison Service should be on the statute book. He said:

"It could be argued that when there are people who have special responsibilities—the police are in such a category and it may be argued that prison officers are as well—and therefore there are difficulties about taking specific forms of...industrial action, there should be a guarantee against that. If that is desired, such people should be given something in return—for example, a right that guarantees fairness in any negotiations."—[ Hansard, 13 April 1994; Vol. 241, c. 335.]

He referred to agreements that existed at the time in respect of the fire service. It is also the case that our former Prime Minister, when he was Leader of the Opposition, gave undertakings in general terms about what was regarded as anti-trade union legislation in that Bill and elsewhere. I have to say to my hon. Friends that there were particular things in the measure as originally proposed by the Conservative Government that were plainly totally unacceptable and raised the temperature. They included measures that would have resulted in the certification officer being able to certify the Prison Officers Association as an independent trade union. It was only under pressure from the Labour Opposition that those matters were sorted out.

I also want to make it clear that when I became shadow Home Secretary in the summer of 1994 and considered, in full consultation with the shadow Cabinet of the day, whether we should repeal that legislation, I decided that, without more such legislation, we should not, because of the very special circumstances that apply in respect of the running of a prison, which, I suggest, are similar to those of the services to the state and to the community provided by the police and the armed forces. I say to the House, and remind my colleagues, that at no stage did anybody, be it the then Leader of the Opposition, me or anybody else, ever give undertakings that section 127 would be repealed, nor was it in any manifesto, either in 1997 or 2001. Indeed, on three occasions I had to make use of the injunctive power under section 127 to avoid a very serious situation within the Prison Service. I have no recollection of that ever being the subject of complaint from anyone in the House. However, we were concerned to do what my right hon. Friend the Member for Cardiff, South and Penarth said, by ensuring that reciprocal arrangements were put in place to balance the fact that prison officers were not able to take industrial action. First, we sought to bring into force part of the 1994 Act, which could easily have been brought into force by the Conservative Administration, but was not, to set up an independent pay review body in place of the previous ramshackle arrangements for settling prison officers' pay.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

My right hon. Friend has suggested that in the summer of 1994, he took a decision on behalf of the Opposition, and the Labour party, that there would be no abolition of section 127. However, a letter of 6 July from Mr. Tony Blair MP to the Prison Officers Association says clearly:

"An incoming Labour Government will want to put this situation right"— that is, the issue of the Criminal Justice and Public Order Bill—

"and ensure, once again, that prison officers are treated in the same way and with the same working rights as other public servants, and recognises the status of the Prison Officers Association as an independent Trade Union".

I believe that the POA and the labour and trade union movement generally interpreted that accurately as a Government commitment to restore the trade union rights of the POA, which means the right to withdraw one's labour.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I understand what my hon. Friend says, but the simple fact is that I made the judgment during the period between summer 1994 and 1997. I do not recall any pressure—except from the Prison Officers Association, which I explained I could not accept—to include a specific commitment to repeal section 127, and no such commitment went into the manifesto. I do not recall any suggestion at the so-called clause 5 meetings that take place with the national executive, or at meetings of the shadow Cabinet of the day, that we should have such a specific commitment, nor was one made.

Winding forward, I have set out—as did Paul Boateng on my behalf in 2000—how we have sought to negotiate a voluntary agreement and a comprehensive package of reforms of industrial relations in the Prison Service to obviate the need for reliance on section 127. That is what Paul Boateng told the House on my behalf in summer 2000. We introduced the pay review body and the then Home Secretary, my right hon. Friend Mr. Blunkett, took the matter forward with the then Prisons Minister, my hon. Friend Paul Goggins. There was then a series of intensive negotiations with the POA about establishing a new, comprehensive voluntary agreement in return for a suspension and/or repeal of section 127.

My hon. Friend the Member for Wythenshawe and Sale, East, who led those negotiations, has authorised me to say that throughout the negotiations with the POA it was made clear at every stage that the voluntary agreement to which we could assent had to include a comprehensive and legally binding undertaking by the association not to take industrial action. It was only in respect of that that the Government moved, by an order under the Regulatory Reform Act 2001, to repeal section 127 of the Criminal Justice and Public Order Act 1994. When that repeal occurred, it was made clear—initially in the other place because that was where it was dealt with, and subsequently in this House—by my hon. Friend Mr. Sutcliffe, who had taken over as Prisons Minister, that

"If the POA gives notice to terminate the agreement with no alternative arrangements being in place, the Secretary of State would ask Parliament to reintroduce statutory constraints such as existed prior to disapplication of Section 127."—[ Hansard, 4 September 2006; Vol. 449, c. 1897W.]

That is absolutely fundamental to this part of the story, which is why I ask all my right hon. and hon. Friends, as well as the House more generally, to support the introduction of what will be a reserve power in the event that we cannot reach a further voluntary agreement.

By the time that the POA had signed up to the 2005 joint industrial relations procedural agreement, or JIRPA, it had voluntarily accepted that whatever else happened in the Prison Service, there could not be industrial action because of the risk to public safety and, I have to say, to the welfare of prisoners. We saw on 29 August the serious risk to prisoners if there is industrial action or a strike: they are literally locked in their cells with no idea when the next meal or exercise is coming, and the quite large number of prisoners with health needs have no idea when their medication will next turn up.

The POA accepted that, but now in a round robin to MPs it says that it signed up to the agreement only under duress—its exact words. But that is not the case. It did not sign up to it under duress, but voluntarily. Indeed, I think that the matter went to a delegate conference. The association examined every single word in that agreement. It signed it and accepted the case voluntarily that I am now making to the House, which is that we have to have arrangements for dealing with industrial disputes in the Prison Service other than the possibility of industrial action because of the risk to the public and the dangers to the welfare of prisoners.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I remind the right hon. Gentleman that I was the Prisons Minister at the time of the Wandsworth strike? I therefore approach this matter as one who had to deal with a strike by prison officers. I agree with the analogy made between prison officers and police officers, but I fail to see why we should ever have contemplated relying on a voluntary agreement with the POA. Either now or in the future, there needs to be a statutory prohibition in force that is in no way the subject of a voluntary agreement.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I understand the right hon. and learned Gentleman's point of view. However, the POA came along and said—I paraphrase and summarise, but entirely accurately—that it was ready for a voluntary agreement. It accepted that the voluntary agreement would be comprehensive. It accepted the terms of the voluntary agreement, which I shall read out in a second, and it also knew all the way through the negotiations that the deal it had signed up to consisted of clear, legally binding and enforceable undertakings not to take industrial action of almost all kinds, and that we would only seek the repeal or suspension of section 127 on that basis. When we sought that repeal, absolutely categorical undertakings were given to the other place, and to this House, in the terms I have read out, that should notice of termination of the agreement be given over a period of a year, as it has now been, we would bring back those powers.

We were given notice of termination last May, which runs out on 8 May this year. I was asked why I have introduced this legislation now. In practice, because of the time it takes a large Bill to go through the Lords, this is the last possible moment, more or less, for legislation to go through in normal time. The only alternative would have been to wait until 8 May and then introduce emergency legislation. In such circumstances, I would have been asked by the Opposition what the emergency was, given that we had known about this possibility for a year. My view was that it would be quite false to suggest at that stage that there was some kind of emergency when there was not.

Moreover, I also had to take into account the following. On 29 August, at 45 minutes' notice, the POA decided to take 24-hour strike action to protest against the phasing of its pay award. I understand its anger. However, in doing what it did, it broke the undertakings that it had already given, because the agreement was current at that time.

I appreciate that the matter is difficult, especially for our side. However, we have accepted that the police and the armed forces cannot go on strike. Anyone who had to deal with the strike, as I did, on 29 August, would have had any doubts that they may have harboured about the need for restrictions on industrial action by prison officers removed by what happened. Only as a result of obtaining an injunction and talking matters through with Colin Moses and with great help from third parties did we manage to persuade the prison officers to call off their strike during that afternoon.

Notwithstanding that, there was a total breakdown of order in Lancaster Farms' Buttermere wing, which houses unstable and potentially violent young offenders, aged 15 to 18. They had been locked in their cells, with only a dozen governor-grade officers on duty to cover the whole youth offender institution, which has a total of 500 young prisoners. It became very clear that those young prisoners were rioting in their cells. I saw the damage and spoke to the staff who had to try to deal with it. The prisoners had completely wrecked their cells, pulled out all the sanitary ware, started fires and so on. Members of the POA outside the gates were asked to come back to help to restore order and they failed to do so. I have to take that into account.

Notwithstanding all that, the moment we had notice from the POA that it would terminate the agreement in May, my right hon. Friend the Minister with responsibility for prisons got in touch with the Trades Union Congress and asked it to appoint someone to be an intermediary to help us to resolve the matter and facilitate negotiations for a new joint industrial procedure agreement. That is an important point, especially for my hon. Friends, but I hope for all hon. Members. Ed Sweeney, who is well known from Amicus to many people, and is now the chairman of ACAS, was appointed to undertake the work.

Ed Sweeney reported on the matter. I decided that I should wait until he had reported to both sides before coming to the House. Copies of his report are available on the website and I know that many colleagues have read it. He lays down a road map for far better industrial relations in the Prison Service. He does not propose at this stage to have no statutory protection against industrial action. Paragraph 4.16 of the report says that, of course, he is aware of the POA's rights and its position. It states:

"This is a clear policy position from POA. However, given the state of employment relations in the Prison Service, I do not believe at this point in time it will be possible to meet this policy position of the POA. Employment relations in the Prison Service actually mitigate against meeting this policy consideration as does the absence of any form of minimum cover arrangements."

He goes on to say that there are minimum cover arrangements in, for example, the fire service and the ambulance service, and that they have worked satisfactorily. He suggests that, after a successful agreement and two years of stability, discussion should take place between the Prison Service and the POA with a view to establishing minimum cover arrangements instead of a statutory ban. I committed myself to that in the House on Monday.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 2:00 pm, 9th January 2008

I apologise to my right hon. Friend for not being able to remain for the rest of the debate, but I have an Adjournment debate in Westminster Hall on police pay—another uncontentious issue.

The whole House will understand the circumstances in which my right hon. Friend found himself in August. That is why mediation by the TUC, with Ed Sweeney bringing all sides together and developing a process through agreement, was welcomed by all parties. However, we now have the memorandum, dated 4 January, from Ed Sweeney. It reads:

"Dear All,

As you know, a couple of weeks ago I sent you a draft copy of my proposals"— we have now seen the report—

"arising from the review that I have been undertaking over the past few months and we are due to meet on January 24."

The parties have only just seen the proposals. A meeting will take place on 24 January, yet we are now souring the process by precipitate action in introducing the new clause, which builds on the distrust that already existed before September in the POA and the Prison Service generally about the Government's intentions. Does my right hon. Friend believe that it was wise to introduce the new clause now? Would it not have been better, if necessary with the agreement of all parties in the House, to introduce emergency legislation if no resolution was found through discussion?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

The action is not precipitate—far from it. The parties had the draft, which is exactly the same as the final version, of the Ed Sweeney report before Christmas. The POA has been left in no doubt about the Government's intentions. Its members knew the position when it negotiated the agreement. They knew what my hon. Friend the Member for Bradford, South had said. They heard exactly what I said before the Select Committee on Constitutional Affairs on 9 October, when I made it clear that reintroduction of section 127 was under active consideration. I have also discussed the matter with them and I am due to meet them next Monday. There is no reason for the new clause to sour relations.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

On the August strike, was not one of the problems with the voluntary agreement the fact that the union expected the Government to honour their side of the bargain? When they clearly did not, by phasing in the pay review, it believed that the Government had broken the agreement and that is why it took strike action. Do the Government not bear some responsibility for what happened?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I understand that that is the POA's case. I do not want to make points about the matter, but it has always been clear that pay review body reports would be accepted apart from in exceptional economic circumstances. However, the POA made the point that the hon. Gentleman raised.

Photo of Mike Penning Mike Penning Shadow Minister (Health)

I thank the Secretary of State for being so generous in giving way.

We are considering a serious issue. As a trade unionist, I am worried about the speed at which the Secretary of State is trying to push the new clause through. We have 58 minutes to debate the union rights of the prison workers of this country. Surely there must be another mechanism. Loads of Members from all parties wanted to discuss the matter. Is not 58 minutes an insult to prison officers?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I do not believe that it is an insult. Were we starting from scratch, the hon. Gentleman's point might be justified, but the new clause is no surprise.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

First, I want to emphasise the point that breaching the agreement angered the POA. At no time was there an agreement about phasing awards from the board.

Secondly, with respect to the Secretary of State, he was serially unavailable to speak to the POA in the months after August— [Interruption.] That is what Colin Moses told me. If I am wrong, I withdraw the remark. However, we are taking precipitate action, which is unlikely to assist matters. We are all concerned about that.

Several hon. Members:

rose —

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I shall give way again, but I want to make one point before concluding. I happened to be on holiday in August. The day I got back—the day before the strike—I asked my then diary secretary to phone the POA because we needed a meeting with its representatives. They were telephoned and they will admit that they failed to get the message, but I have always made myself available to the POA.

Several hon. Members:

rose —

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

My last substantive point before giving way is that the new clause provides for reserve powers, which can be introduced by order. If we do not have an agreement by 8 May, they would come into force in any event. However, subject to that, they would be introduced and turned off by order. [Interruption.] I have just been reminded that I had a telephone call with Colin Moses on 9 July and saw him informally before that, as well as holding a meeting at the end of August. There has never been an issue about his access to me. The POA accepts that.

I emphasise to my hon. Friends that the new clause provides for a reserve power. I said on Monday that I would prefer it if we never had to use it, and that remains my intention. We will work with Mr. Sweeney, the Trades Union Congress and other facilitators to do everything that we can to gain a new agreement. When people both inside and outside the House know the history, they will accept that what we have said has been entirely consistent and honourable. What we propose is the minimum required to protect the public and the welfare of prisoners.

Photo of David Winnick David Winnick Labour, Walsall North

Everyone will recognise that my right hon. Friend would not ask for such powers lightly. Obviously, industrial action taken by prison officers could cause a great deal of difficulties and worse. But does he also recognise the concern that if such powers are agreed to, another Government might use that as an excuse and a justification for taking away the right of people in the emergency services—firefighters, ambulance workers and the rest—to take such action? That is the reason for my hesitation about being able to support him.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I understand my hon. Friend's concern, but the wording is very specific. In relation to the fire and ambulance services, these days no Government would be justified in doing what he fears, because there are proper minimum cover arrangements, and in practice there are no strikes or serious industrial disputes in those areas. That is the truth of it. He and I were in opposition for 18 years against the Conservative Government, and if and when the Conservatives come to power they will do what they want to do, regardless of what we do.

Photo of David Anderson David Anderson PPS (Bill Rammell, Minister of State), Department for Innovation, Universities and Skills

The Secretary of State mentioned Ed Sweeney's plan as being a road map. In the view of the prison officers and many Labour Members, however, the wording of the second part of new clause 36(3) is actually a road block. The reference to

"any other action likely to affect the normal working of a prison" would be a catch-all, whereby people would be guilty of a criminal offence for any simple thing, if such action is defined by the management. Will he remove that provision, alter it, or define clearly what it means?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

That phraseology picks up the phrasing of paragraph 6 of the annexe to the current agreement.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

It is not why it did not work, with great respect. In the hope of being helpful, while I cannot give an undertaking now as to the terms I am certainly ready to sit down and consider ways in which that provision can be tightened, with a view to bringing forward amendments in the other place.

G

More bad legislation from old New Labour.
Well said David. Don't back down.

Submitted by Gary Elliott

Photo of Geraldine Smith Geraldine Smith Labour, Morecambe and Lunesdale

The prison officers at Lancaster Farms were grateful to the Secretary of State for visiting them, talking to them and listening to their concerns, but morale is very low at both Lancaster Farms and Lancaster Castle. Staff are losing the right to strike and to industrial action, but what are they getting in return? The solution must be to recognise the difficult and dangerous job that they do, to give them our full support, and to give them adequate financial compensation.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I accept the concerns expressed, and I was pleased to meet prison officers, who are dedicated staff, as I have spelled out on many occasions—and I mean it. But they are not losing the right to strike—the POA voluntarily signed up to legally binding undertakings not to take industrial action; it accepted the case that I am now making. It did not have to sign up to it; it did sign up to it.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

It is withdrawing from it, but it knew precisely what the arrangement was if it withdrew from it—we would have no alternative but to reinstate the equivalent of section 127.

Photo of Richard Burden Richard Burden Labour, Birmingham, Northfield

For all the reasons that my right hon. Friend has given, I am sure that we all want a successful reintroduction of the voluntary agreement. As has been pointed out, however, the new clause relates to all industrial action, not simply that affecting the safety, welfare, security or health of prisoners. Given that other Governments could use that provision, will he guarantee that in the event of the reserve powers being taken, there would be a specific vote in the House before they were ever exercised?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I am ready to give this very clear undertaking. If the powers have to be brought in on Royal Assent, the issue of the affirmative procedure would not arise, because it would have been the subject of considerable debate backwards and forwards in any case. But if, as I hope that we can achieve, they start off as reserve powers, I am ready to ensure that amendments are made to this part of the Bill in the other place, whereby the reintroduction of those powers could take place only through the affirmative procedure. I am happy to consider the reverse situation, whereby they would be turned off, but I do not think that anyone would want that. Once they exist as reserve powers, or have been turned off, their reintroduction could only take place through the affirmative procedure.

I am grateful to the House for listening to me. I have taken a lot of interventions, which I hope has been helpful. I commend the new clause to the House.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice) 2:15 pm, 9th January 2008

I shall try to take as little time as possible because I suspect that other hon. Members might wish to contribute to the debate.

The Secretary of State seemed to show little understanding of why the Prison Officers Association is so angry about his statement on Monday. It was taken by surprise by his statement, in the same way that he claims to have been taken by surprise by its wildcat action last year. Far from the Government being entirely consistent, as he claimed, part of that anger arises because the Government's explanation of the history of the legislation and the action that they are now taking has not been straightforward.

On Monday, and again today, the Secretary of State denied that the Labour party had fought tooth and nail against the legislation that outlawed strike action. He took umbrage at the suggestion. We have already heard about the letter from Tony Blair when he was shadow Home Secretary, shortly before he became leader, to the Prison Officers Association. Mr. Blair made it clear in that letter that

"we have strongly opposed the Criminal Justice and Public Order Bill on a number of Clauses which represented a wholly unwarranted attack on the working rights of prison officers".

What is the difference between fighting tooth and nail against such measures and strong opposition? As has been admitted, the Labour party originally opposed the legislation.

On Monday, the Secretary of State also said, and he has repeated, that no undertakings were given to repeal section 127. Again, Tony Blair's letter is explicit. In 1994, he told the Prison Officers Association:

"An incoming Labour Government will want to put this situation right".

It was not just Tony Blair as shadow Home Secretary who was making those promises; Labour Opposition spokesmen were going around the country making such undertakings, giving the impression to members of the POA that section 127 was not only being resisted but would be repealed. Mr. Prescott, when he was shadow Employment Secretary in 1994, won great applause, as the record shows, at what was no doubt a Labour party conference, when he talked about the Labour party's decency agenda. He said:

"we will revert and give Prison Officers the right as employees in an employment situation doing a decent and responsible job".

Is it not absolutely clear that the unions were given the impression that section 127 would go? It does the Justice Secretary no good at all to seek to suggest otherwise now.

It is surprising that the Prison Officers Association should have been moved to issue a note yesterday saying:

"It seems to us that despite repeated guarantees, the Labour Party in Government cannot be trusted to honour their promises".

Of course, the Opposition have known that for some time, but it comes to something when a union is forced to issue such a statement.

The fact is that whatever the subsequent justifications, the Labour party opposed the legislation originally, and promised to repeal it. It did not do so fully until three years ago, when it replaced it with a voluntary agreement, which the country was assured would deliver the same protection for prisons as had been delivered by the no-strike provisions. Now, three years later, the Secretary of State is forced into the humiliating position of having to come back and reintroduce provisionally that same legislation.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I am listening carefully to the hon. Gentleman, but does he accept that at the time of the repeal, a little less than three years ago, the clearest undertakings were given that if we faced the circumstances that we do today, we would reinstate section 217 or its equivalent?

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

The question I put to the Justice Secretary on Monday, which he did not answer, is why the Government repealed the legislation in the first place. Is it not clear that it was a mistake to do so? If it was not a mistake, why are the Government now coming before the House, after giving 48 hours' notice, to reinstate legislation that they had previously removed? The Government have not yet satisfactorily explained why they took that action in the first place.

The scrutiny committee was clear that the protection afforded was not to the same standard as a no-strike agreement. The unions thought that they had a deal. The quid pro quo for having a no-strike agreement was that there would be a pay review and that any award would be honoured. Today, the Secretary of State justified the staging of the review—in part, the cause of this grievance—by saying that there were "exceptional economic circumstances", which is why the award could not be honoured in full. Conservative Members have been constantly told that we are living through a golden economic age with successive years of economic growth. Now it appears, in the words of the Justice Secretary, that there are "exceptional economic circumstances", which means that this award and that of the police cannot be paid. We are apparently living in such dire economic straits that the awards cannot be honoured. That breach of the deal that the Prison Officers Association believed it had has driven its anger about current arrangements. As I said on Monday, the POA is also concerned about the conditions in prisons over which the Government have presided.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

While I accept my hon. Friend's analysis, does he agree that it simply reinforces the proposition that we should never allow a voluntary agreement and that there should always be a statutory prohibition on prison officers taking industrial action—simply because they cannot be relied on to keep to voluntary agreements?

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

Indeed, as my right hon. and learned Friend says, the statutory ban would have afforded greater protection for the public and the wildcat action could not have taken place. Presumably, the fact that the Government have come before the House to reinstate the ban demonstrates that they agree with my right hon. and learned Friend that it is indeed necessary to have statutory protection.

On Monday, the Justice Secretary said, and I agree with him, that

"it cannot be acceptable for prisoners to be locked in their cells for an indeterminate period"—[ Hansard, 7 January 2008; Vol. 470, c. 40.]

Anyone who has visited prisons will know of the great difficulties that prison governors have in dealing with inmates locked up for whole days with only a few staff on account of the wildcat action. Prisons must be places of safety; there is no place in them for such industrial action.

We are aware that locking up prisoners for long periods is rumoured to be about to happen this summer on account of the budgetary situation in the Prison Service. I would be happy if the right hon. Gentleman were to correct me, but I understand that there are proposals to have lockdowns in prisons for entire weekends, during which prisoners will be confined to their cells as there are insufficient staff to look after them. I thus find it surprising to hear the Justice Secretary talking about the unacceptability of locking prisoners up for long periods.

We will support the Government in the reintroduction of this power—

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

Of course it is no surprise, as we introduced the power and it was clearly a mistake to rescind it in the first place. I would like to congratulate the Secretary of State on his conversion to Thatcherite trade union reforms and on his recognition of the protections they afford the country. When the Prime Minister invited Lady Thatcher to Downing street for tea just a few months ago, we could hardly have thought that it would yield such impressive results. I suggest that the Justice Secretary invite my right hon. and learned Friend Mr. Howard in for a cup of tea in order to advise him further on how to introduce more of such legislation.

The fact is that the proposed reserve power actually goes further than section 127. The new clause does not just make industrial action by prison officers unlawful, as it applies to

"any other action likely to affect the normal working of a prison".

We have now reached a position of future uncertainty because of how the Government have reneged on the pay award. They have mishandled the situation in prisons and allowed them to become overcrowded, so damaging relations with the POA that it is necessary for them to assume this power again. Being forced into that situation is an indictment of the Government's handling of this matter, so I am not surprised that the Secretary of State looked so sheepish about it both on Monday and today.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Any doubts about my view of the new clause have been reinforced by the reminder that this is Thatcherite legislation. In fact, some of what it does goes beyond Thatcherism.

We all recognise that operating a prison is exceptional and that it is not like running a factory. There have to be differences in how the trade unions can operate because we cannot allow prisons to be left unstaffed. Prisons have dangerous and violent people within them as well as people with all sorts of mental health problems. There are also many vulnerable people, particularly in some of the young offender institutions. We expect prison officers to keep those people secure, keep them safe and ensure that they are fed, receive appropriate medication and so on.

If we are to achieve that as efficiently as possible, we need good industrial relations within prisons, as the Secretary of State has acknowledged. We need the Prison Officers Association and other unions in the prison system to feel that they can act as trade unions, which is part of having good industrial relations. Recent history, however, has been exactly the opposite, as prisons have had very poor industrial relations. That is one of the reasons why Ed Sweeney's report was undertaken and why both the Government and the POA signed up to it. That report, however, was published only on Monday this week. I realise that my right hon. Friend said that drafts have been seen, but the report was published only on Monday, as I say, and at exactly the same time that he made his statement announcing the amendments to this Bill.

The Sweeney report was set up in the context of poor industrial relations and the need to secure a new voluntary arrangement to replace JIRPA—the joint industrial relations procedural agreement—from which the POA had given notice that it was withdrawing. We can argue about how good JIRPA was and how well it worked. The fact is, though, that it did not work; otherwise, there would not have been any withdrawal from it. The Sweeney report points to some of the issues that the POA raised about JIRPA and how far it allowed the union to raise relevant industrial relations issues as opposed to allowing management to rule them out. Irrespective of arguments about JIRPA, everyone accepts that we need a new and better agreement.

My right hon. Friend says that he does not want to use the powers in the new clauses, but—because of the timing as much as anything else—the POA now undoubtedly sees the new clauses as having been designed to hold a gun to their head in negotiations that have not begun. I know that that is not my right hon. Friend's view, but having spoken to its representatives yesterday afternoon I can assure him that it is the POA's view, and I think that that will make it much more difficult for us to reach the sort of agreement that we want to reach.

A particular problem is the wording of the new clause, which is why I tabled amendment (a). As has already been pointed out, it does more than just reinstate section 127 of the 1994 Act. My right hon. Friend says that the wording of the definition of industrial relations in the new clause is the same as that in the JIRPA, but I consider that there is a distinct difference between putting that wording in a voluntary agreement and putting it in the law.

Photo of David Anderson David Anderson PPS (Bill Rammell, Minister of State), Department for Innovation, Universities and Skills 2:30 pm, 9th January 2008

Is not the obvious difference the fact that while under the JIRPA people who took action that was slightly out of order would be guilty of a disciplinary offence, under the new clause they would be guilty of a criminal offence? Those to whom we look to lock up criminals would become criminals themselves.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

That is quite possible. Another possibility is that the wording will become the subject of interpretation by courts. I do not think any of us can be certain what the consequences of that will be: what it might mean in terms of a new definition of industrial action and, once it has happened in this context, into what other contexts it might spill.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

As I said to our hon. Friend Mr. Anderson, although I will not give an undertaking on the precise wording until we have reached an agreement, I am prepared to consider points that are raised, and I understand the point that has been raised so powerfully by both my hon. Friends.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

That is helpful. I think that the wording should be examined and, hopefully, changed before it is put into law. Anyone who has read Sweeney's report will know that he had many good points to make about changes to the arbitration system allowing both sides to raise issues, and about binding arbitration. It is very important for the arbitration to be binding on both sides.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The hon. Gentleman says that we need to be sensitive about the rights of prison officers, and I understand that, but we also need to be sensitive about the rights of prisoners. Will the hon. Gentleman cast his mind back to what happened at Strangeways in the early 1990s, when a number of prisoners on rule 43 were effectively attacked in the prison? That is what happens when order in prisons breaks down. We must bear it in mind that prisoners are very vulnerable, and are at risk from other prisoners. We cannot tolerate circumstances in which order in prisons cannot be maintained.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

We all appreciate that order in prisons must be maintained. The issue for me is the timing as much as anything. If we had reached a point at which negotiations were breaking down and it was clear that no voluntary agreement would be reached, I would understand the Government's saying that something must be done; but doing it at this moment and in this form will make it far more difficult to reach the sensible agreement that we want to be reached between the Department and the prison officers.

I do not think that new clause 37 helps. My hon. Friend says that the power will be introduced by order, but my reading of the new clause suggests that it would come into force on Royal Assent. The new clause concerns the ability to suspend the provisions, and my right hon. Friend has said that he will consider allowing that to be done by means of an affirmative resolution. Some of us would be rather happier if the implementation took place by means of an affirmative resolution in the first place, rather than on Royal Assent with the suspension being implemented by means of a negative resolution.

I think that we are in danger of shooting ourselves in the foot by passing a measure that will make it far more difficult to reach the voluntary agreement that we all need. I hope that my right hon. Friend will think again, because I cannot support the new clause in its present form.

Photo of David Heath David Heath Shadow Secretary of State

It is a pleasure to follow Mr. Gerrard, who talked a great deal of common sense. He spoke of the danger of our shooting ourselves in the foot. I suspect that the foot is well and truly shot already by the actions that have been taken, and in particular by the circumstances that have led to what the Lord Chancellor has done today.

The problem is not, in fact, what is proposed. We would all prefer a voluntary agreement to a statutory agreement if it could be made to work, but wildcat action took place, and that cannot be ignored. As I said on Monday and am happy to repeat, I do not believe that strike action is ever proper in a prison environment, and that is the end of it. The other side of the coin is that avoiding industrial action, and ensuring that we have an environment in which it is inconceivable, requires proper negotiating machinery and proper, binding arbitration on issues of grievance, and it requires management and Government who listen to what the people in the service are saying. It is transparently obvious that that has not been the case for a good many years.

Nick Herbert spoke of a cosy little teatime chat between the Lord Chancellor and Mr. Howard. The two of them could reminisce for a long time about the various deficiencies of the prison system under their respective stewardships, although it might be a rather one-sided conversation. I seem to remember that the right hon. and learned Member for Folkestone and Hythe was somewhat reticent when asked questions about the system, and famously found it difficult to give a response. The fact is, however, that we have had a significant problem with industrial relations in our prisons for a long time—in England and Wales. I made that point on Monday. Ed Sweeney's report makes it absolutely clear that the same does not apply in Scotland. We must ask ourselves in all humility what the Liberal Democrat-Labour Administration in Scotland were able to do— [Interruption.] It was a Liberal Democrat Minister of Justice, as Jon Trickett may recall. We must ask ourselves what that Administration were able to do that eluded Ministers in this House with the same responsibilities, because we have clearly reached a point at which there has been a breakdown in trust.

I said on Monday, and I say again now, that I believe that the staging of the pay award was a key component. If we do not treat the public services fairly by providing an independent assessment of pay, we must clearly expect a degree of resentment. All I have said to date is that I wish we were not starting from here. But we are starting from here, and I recognise the Lord Chancellor's difficulty. He must deal with a prison system in which there is recent experience of strike action, and that is not acceptable. However, the timing is most unfortunate. The fact that we are legislating today when the Sweeney report was published only on Monday, containing very positive proposals for improving the situation, is extremely regrettable. My fear is that it will poison the well in terms of future negotiations, and we will not secure the successful outcome that we all want.

I am concerned to hear the Lord Chancellor tell his hon. Friends that he did not really mean what the new clauses and amendments say, and that he will rewrite them before the Bill goes to another place. That is yet another example of why it is wrong to legislate on Report on important matters of this kind, and expect us to rubber-stamp the legislation in the context of a very abbreviated time scale when it should be subjected to proper reflection, consideration and scrutiny before moving to the other place. It seems, however, that we must wait until the Government have done their work in the other place and brought the Bill back to us with revised wording which we hope will deal with some of the issues of scope identified by the hon. Member for Walthamstow, and perhaps with the issue of the commencement on Royal Assent—which may or may not be helpful, depending on the circumstances that apply when the Bill reaches its final stages in both Houses.

However, I have to say to the Lord Chancellor that, if there were an affirmative procedure, that would not be a problem in any case. In those circumstances, we would not need to make commencement automatic on Royal Assent. We could bring forward the affirmative procedure at that point in order to bring it into action if it is considered to be necessary to do so.

Although I am prepared to accept for the purposes of today that the Lord Chancellor has to bring forward these proposals, I think that it is intensely regrettable that they are here. It speaks of failure of management and failure of the negotiating machinery between the Government, the management of the Prison Service and the work force. It suggests that industrial relations are at an unacceptable level in a key public service. My message to the Government is: they really must do better.

Photo of Frank Doran Frank Doran Chair, Administration Committee

We are very short of time so I will make some quick points. This is an industrial relations issue. Of course, it is necessary for the Secretary of State for Justice to see it in the context of the security of the Prison Service. He rightly talks about the statutory position. My recollection is that the Prison Act 1952 makes the prison officer a constable, but the real position is that the Prison Officers Association is different from the trade unions for the police and the Army. The trade unions for the police and Army have always been subject to limitation on their actions and in relation to strikes. For most of its existence over 70 years, the POA has been a normal trade union with all the normal trade union rights.

In the early 1990s, there were a lot of industrial difficulties. There are still industrial difficulties in the prison system, but it was the courts that decided that prison officer trade unions were not to be allowed to operate as normal trade unions. It is an irony that the 1994 Act, introduced by the then Conservative Government, restored some of the rights that they had lost.

There was another event, as well as that legislation and the court case. That was the inquiry into the Strangeways disaster. It is important to put on the record a couple of the decisions made by the report produced by Lord Justice Woolf and Judge Stephen Tumim. They decided that there was no need to abolish the trade union status of the prison officers. They said:

"We take the view that industrial action by prison officers should not be made unlawful at this stage.

Conditions in prisons have significantly contributed to the present hostile state of industrial relations, just as they have contributed to souring relations between staff and prisoners."

That is important at a time when prisons are full and getting fuller. The report went on to say:

"We are encouraged to take this view because we found from the Inquiry's visits to establishments that those places with satisfactory conditions and constructive regimes appeared more likely than other, less well endowed prisons, to have satisfactory industrial relations."

Therefore, the message from that report is, "If you sort out the prisons, you will sort out the industrial relations." I know it is not quite as easy as that, but I have a strong view, which is shared by most of my colleagues on the Labour Benches—

It being two hours after commencement of proceedings on the programme motion, Mr. Deputy Speaker put forthwith the Question s necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

The House proceeded to a Division

The House divided: Ayes 481, Noes 46.

Division number 39 Criminal Justice and Immigration Bill — Preventing prison officers from taking industrial action

Aye: 480 MPs

No: 45 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 116 MPs

Abstained: 1 MP

Absents: A-Z by last name

Abstaineds: A-Z by last name

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.