Boots Management Services Ltd, R (On the Application Of) v The Central Arbitration Committee

An interested party directly affected by a judicial review claim may seek a declaration of incompatibility under section 4 of the Human Rights Act 1998. The court may permit amended grounds where the amendment causes no discernible prejudice and resolves an important compatibility issue.

Where statutory bargaining arrangements with a non-independent union are terminable under Part VI of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, the arrangements may provide a practical route past an incumbent-union barrier to statutory recognition. In paragraph 134(1), “collective bargaining” means negotiations over matters which the parties have agreed should be subject to collective bargaining. On that construction, no incompatibility with article 11 arises.

The Central Arbitration Committee decided that the Pharmacists’ Defence Association Union’s application for statutory recognition by Boots was admissible. Boots sought judicial review. In an earlier judgment, the court held that paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 could not be read compatibly with article 11 of the Convention, and invited consideration of a declaration of incompatibility.

The Union applied for declarations concerning paragraph 3 of the Schedule and permission to amend its grounds. The Secretary of State intervened under section 5 of the Human Rights Act 1998, arguing that paragraph 134(1) could be interpreted so that the existing bargaining arrangements could be ended under Part VI. The issues were the Union’s standing, amendment, the availability of that route, and the proper construction of “collective bargaining”.

1. The Union, as an interested party directly affected by the claim, was for practical purposes a party to the proceedings. It therefore had standing to seek a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. The court also granted permission to amend the grounds because there was no discernible prejudice and there was a strong public interest in resolving the alleged incompatibility.

2. The barrier in paragraph 35 of Schedule A1 did not make the Union’s right to engage in collective bargaining devoid of substance. Under paragraph 137, a worker or workers in the bargaining unit could apply to end bargaining arrangements with the incumbent non-independent union. The Schedule also provided compensation for detrimental treatment or dismissal connected with such an application under paragraphs 156 and 161–162. The practical possibility of that route was sufficient.

3. Paragraph 134(1) was construed according to ordinary principles of statutory interpretation. “Collective bargaining” meant negotiations over any matters which the employer and union had agreed should be the subject of collective bargaining. Paragraph 136 expressly disapplied the section 178 definition for Part VI but supplied no replacement definition. The wording and structure of Part I, together with the need for consistency between recognition and de-recognition, supported the wider construction.

4. On that construction, the bargaining arrangements between Boots and the Boots Pharmacists’ Association could be terminated under Part VI. The interpretative duty in section 3 of the Human Rights Act 1998 was therefore unnecessary, and no breach of article 11 arose. Even if the narrower construction had been retained, section 3 would have required the wider possible construction of paragraph 134.

5. The Union’s application was inadmissible under paragraph 35. Boots’ judicial review claim succeeded and the CAC’s admissibility decision was quashed. Costs were left for agreement, with written directions if agreement could not be reached.

1. High Court (Administrative Court) — In [2014] EWHC 65 (Admin), the court made findings on Boots’ judicial review claim but made no final order, allowing the Union to consider seeking declarations of incompatibility.

2. High Court (Administrative Court) — The present judgment allowed Boots’ claim, quashed the CAC’s decision that the Union’s application was admissible, and determined the Union’s consequential applications.