Prison Officers' Association, R (on the application of) v Secretary of State for the Home Department

A legally binding collective agreement requiring consultation does not necessarily prescribe a particular forum, timetable or procedure. Consultation is sufficient where the affected party is given a genuine opportunity to express views before the decision, together with relevant information and time to respond. The views advanced must be sufficiently reasoned to call for a response and, where necessary, reasons for non-acceptance. A party that fails to use opportunities offered, request more time or make detailed representations before the decision cannot generally complain that consultation was inadequate. Contractual provisions preserving the status quo require evidence of the previously agreed practices or established custom and practice before they can support relief.

The Prison Officers’ Association sought judicial review of the Secretary of State’s decision to issue Prison Service Instruction 09-2003. The instruction abolished centrally prescribed mandatory training and devolved training decisions to local management.

The Association alleged that the Prison Service had breached the legally binding Voluntary Agreement by failing to consult adequately and by refusing to suspend the instruction pending resolution of the dispute. Discussions had taken place through written correspondence and a Training Forum. The dispute proceeded through the agreement’s procedures and ACAS conciliation, but was not referred to arbitration.

The central issues were whether consultation within the meaning of the agreement had been offered and whether the status quo clause required suspension of the instruction.

1. Application dismissed. The Prison Service had offered consultation within the meaning of the Voluntary Agreement. The agreement imposed no requirement that consultation occur within a particular framework, and the Training Forum was not an inappropriate forum.

2. The letter of 17 October 2002 plainly invited comments on the draft instruction. Although the period allowed was tight, extensions were available where requested. The Association did not request an extension. It had a further opportunity at the Training Forum, but advanced only a formal and unparticularised objection.

3. The agreement’s definition of consultation required views or opinions capable of calling for a response and reasoned non-acceptance. The Association could have made detailed representations, requested further discussion or made clear before issue that it regarded the process as inadequate. It did none of those things.

4. The instruction was capable of being a significant change to policy or procedure affecting staff and it would have been preferable for that to have been acknowledged from the outset. That did not, however, establish a breach because adequate opportunities for consultation had been provided.

5. The status quo clause could not determine the application without evidence identifying the practices previously agreed or constituting custom and practice at the relevant date. The evidence was insufficient. In any event, the substantial increase in the Association’s objections after issue provided a basis for refusing suspension.

6. The agreement provided that, where neither party referred an unresolved dispute to arbitration, management’s position was deemed accepted. The court considered that this provision made judicial review an inappropriate route in the circumstances, although the claim was determined on its merits. The application was dismissed.