Ministry of Justice v POA: [2008] EWHC 239

QBD: Wyn Williams J: 18 February 2008

The claimant employer, a government department, had a no-strike agreement with the defendant trade union expiring in May 2008. The defendant’s members, who were prison officers, were prohibited by statute from taking industrial action, and recommendations about their pay and allowances were made by a pay review body under the Prison Service (Pay Review Body) Regulations 2001. In 2004 the defendant challenged the abrogation of its and its members’ right to strike before the International Labour Organisation, and the United Kingdom Government stated, by way of compensation for the limitation placed on prison officers’ freedom of action, that it would accept the recommendations of the pay review body except in exceptional circumstances, one of which would be affordability. In March 2007 the review body recommended a 25% pay increase with effect from 1 April 2007. The claimant concluded that the recommendation was unaffordable and announced that the award would be implemented in two stages, with an immediate rise of 15% to be followed by a further 1% in November 2007. A ballot of union members showed a very substantial majority in favour of industrial action, and on 29 August a strike took place which had a serious impact on prison services. The claimant applied for an interim injunction against the defendant restraining further industrial action, which was granted on the basis that the claimant had an arguable case that the defendant was in breach of the no-strike agreement and the balance of convenience was strongly in favour of making the order.

The claimant applied to extend the injunction until the expiry of the no-strike agreement, the defendant opposing the application on the ground that the claimant’s conduct had been such as to require the court to withhold what was an equitable remedy and relying, inter alia, on article 11 of the European Convention on Human Rights.

Wyn Williams J held:
In the context of English law, it was clear that when the claimant did not accept the pay review board’s recommended award in its entirety it was acting lawfully, and, when the issue of affordability was taken into account in the decision to stage the pay award, the claimant was acting in a manner which was consistent with the way in which it said it would act. Accordingly, it was very difficult to see how the claimant had acted in such a way that it should be deprived of an equitable remedy. In any event, the claimant’s alleged failure to meet the United Kingdom’s obligations in international law, pursuant to treaties or conventions not incorporated into English law, by providing adequate compensatory measures for the prohibition on industrial action could not amount to inequitable conduct for present purposes, and article 11 of the European Convention on Human Rights conferred no express right to strike and afforded considerable latitude to the government to regulate the circumstances in which the right might be removed. Taking into account the no-strike agreement and the effects of the industrial action in August 2007, there was a very strong public interest in providing the claimant with a remedy to restrain a breach of contract by the defendant.

The application was granted.

Appearances: John Bowers QC and Bruce Carr (Treasury Solicitor) for the claimant; John Hendy QC and Rebecca Tuck (Lees Lloyds Witley) for the defendant.