There has been a fair amount of misrepresentation and misdirection from various sources about our victory in the High Court over the government’s cuts to redundancy terms in the civil service.
On 18 July, judges in the High Court ruled that it was unlawful for the previous Tory government to exclude us from talks over its latest cuts to redundancy terms.
In November 2016, the government imposed cuts of about 30% to the redundancy provisions of civil servants through changes to the Civil Service Compensation Scheme (CSCS).
This followed a “consultation exercise”, the latter stages of which PCS, along with POA and Unite, was debarred as a result of our refusal to sign up to outrageous preconditions for talks that would have effectively meant accepting the key aspects of the cuts before negotiations took place.
PCS applied for a judicial review of the changes and the hearing took place at the High Court on 4 and 5 July.
In short, we have won our case. The judges ruled that there was no basis on which the then Cabinet Office minister Ben Gummer was entitled to exclude us from the consultation and dismissed the Cabinet Office’s claim that our inclusion in talks would have made no difference. The judges said: “It cannot be said that it is highly likely that the outcome would not have been affected if the PCSU had been allowed to participate in the second round of discussions, as it should have been.”
We have won our claim and are now entitled to relief.
John Manzoni’s claims versus the factual position
On the day of the ruling John Manzoni, chief executive of the civil service, published a message to all staff about the judicial review. This was littered with inaccuracies and is, at best, a failure to acknowledge and understand the judgment, or, at worst, a deliberate exercise in misdirection.
Here is our rebuttal to his claims.
Claim: “The government changed the Civil Service Compensation Scheme in November 2016. This followed an extensive public consultation and engagement with all civil service unions.”
Fact: The government imposed cuts of about 30% to the redundancy terms of civil servants. In doing so, they ignored the overwhelming majority of the responses to the public consultation which said that the cuts were unjustified. 96% of members of PCS – the largest civil service union - who took part in a ballot rejected the terms.
Claim: “After this initial consultation, the government then invited all unions to a series of further discussions focussed around a basic structure to see if agreement could be reached. These constructive discussions led to further changes to the proposal, which made it more generous. These were incorporated in the final scheme after agreement by 8 ouf of 10 unions (FDA, Prospect, GMB, Unison, Unite, NCOA, the Defence Police Federation and PGA).
“PCS did not take part in these additional discussions. Instead, PCS chose to take legal action, bringing a judicial review that made a number of claims.”
Fact: The employer wrote to the unions on 3 June, 2016 demanding that we sign up to pre-determined cuts to our members’ redundancy terms in order that we might be allowed to enter further talks. PCS, Unite and POA responded to the employer on 19 June, 2016 stating that we were prepared to enter negotiations with a view to reaching agreement but that we would not sign up to predetermined outcomes. The response of the employer was to exclude those unions from the talks. In total, the excluded unions have around 250,000 civil service members, the unions who agreed the scheme have around 70,000 civil service members. In response, PCS brought a Judicial Review and the court has ruled that we were unlawfully excluded from the discussions by the employer.
Claim: “The court’s judgment published today found that there were good reasons for the government’s decision to reform the CSCS. However, although the court rejected the challenge to the substance of the reforms, it found against the government on process. It found that the government had not fully met its obligation to consult with a view to reaching agreement on changes to the compensation scheme. This was because PCS was not involved in the further discussions.”
Fact: Nowhere in the court judgment does it say that the court considered that there were good reasons for the government’s decisions to reform the CSCS. This claim is utterly unfounded. Nor did the court simply find against the government on process.
In the judgment, the court found that the requirement to consult with a view to reaching agreement “….is not an obligation of result, since no agreement may be forthcoming at the end of such consultation. However, it is an obligation to consult in good faith and in a spirit of willingness to consider counter-proposals put forward by any representative trade union, such as the PCSU, with a view to seeing if, after giving them consideration, they might be accommodated in or alongside any proposed changes to the CSCS which the minister proposes to make.” And “The fact that the minister has to make a report to parliament in accordance with these provisions emphasises the importance of the safeguard for workers’ rights in the civil service which the duty of consultation….is supposed to create. It is clearly entirely possible that ‘the devil is in the detail’ in this context, so the safeguard for workers is that they will not have their rights to compensation benefits diminished or removed without a genuine attempt first having been made to secure agreement on that specific issue with their union representatives. These provisions are not concerned only with vague agreements in principle.”
Claim: “We are disappointed with this decision. The government intends to appeal and will ask for the judgment to be put on hold pending this.”
Fact: PCS does not doubt that they are disappointed by the decision of the court as it frustrates their attempts to make it quicker, easier and cheaper to sack their staff. The government has indeed appealed – and permission to appeal has been refused by the court. The court has also refused the government’s application for the judgment to be put on hold. The government will now need to seek permission to appeal from the Court of Appeal, and there is no guarantee this will be given.
Claim: “If this judgment does result in an increase in exit costs, this will simply be an additional cost that will fall onto existing departmental budgets. The reasons for reforming the CSCS, which the court accepted, still stand and we need to have sustainable terms in place. At the same time therefore we are also preparing to consult again on reforms.”
Fact: It does not follow that an increase in exit costs automatically falls on to departmental budgets. The government can find money when it needs to; the Democratic Unionist Party secured an extra £1 billion in funding for infrastructure in Northern Ireland as part of the 'Confidence and supply' agreement with the government. As the judgment makes clear, the projected savings from the cuts to the CSCS over the same period would be between £160-200 million. With regard to the government’s claim they are preparing to consult again on reforms, this misses the point of the judgment – their obligation is not to simply consult; it is to consult with a view to reaching agreement.
Claim: “In the immediate term, we appreciate that staff will want to know what the impact is for them, in particular if they are about to go through exit schemes. This is dependent on the position on appeal and the new consultation exercise, so we will communicate again as soon as we can. A key priority is to get certainty for staff as soon as possible. Once the position is clear we will be contacting individuals who exited on the 2016 terms to advise them of the situation, as it is possible that these terms may change, given the judgment.”
Fact: As a result of the PCS victory in the High Court, the 2016 redundancy terms have been quashed, leaving the more beneficial 2010 terms in place. Those terms will apply to present and past redundancy situations, meaning more money for any civil servant who has lost, or is unfortunate enough to lose, their job.