Law Report: Miners entitled to review before pit closures: Regina v British Coal Corporation and another, Ex parte Vardy and others - Queen's Bench Divisional Court (Lord Justice Glidewell and Mr Justice Hidden), 21 December 1992

British Coal is under a statutory obligation which applies only to the coal industry to consult the miners' unions about proposed pit closures and redundancies and which gives the unions a legitimate expectation that the established consultation procedure, including some form of independent scrutiny, will be followed when pit closures are proposed.

The Divisional Court granted a declaration that British Coal should not reach a final decision on the closure of any of 10 collieries, nor should the President of the Board of Trade make available funds which would enable British Coal to reach such a decision, until a procedure substantially to the same effect as the modified colliery review procedure, including some form of independent scrutiny, had been followed in relation to each of the collieries.

The coal-mining industry was nationalised in 1946, and section 46 of the Coal Industry Nationalisation Act 1946, imposed on the National Coal Board, now renamed British Coal Corporation, a duty to enter into consultation with the coal-miners' unions in matters including the closure of coal mines and redundancies resulting from closures.

In 1985, after the end of the year-long miners' strike, a new machinery for consultation about closures was agreed, known as the modified colliery review procedure (MCRP), which added a right for the unions to refer a proposed closure to an independent review body (IRB).

On 13 October 1992, British Coal announced that production was to cease at 31 collieries. The decision was made without any consultation. The President of the Board of Trade announced that he was making funds available to alleviate the effect of the resulting redundancies. On 19 October the President of the Board of Trade, in a statement to the House of Commons, said that, subject to statutory consultation, only 10 pits would be closed. British Coal affirmed that decision. An international mining consultancy would report on the viability of the other 21 pits.

The National Union of Mineworkers, the National Association of Colliery Overmen, Deputies and Shotfirers, the Union of Democratic Mineworkers and mineworkers at different collieries applied for judicial review of the decisions on 13 and 19 October.

John Hendy QC, Jennifer Eady and Keir Starmer (Stephens Innocent) for the NUM and Nacods; V V Veeder QC, Peter Keenan and Christohper Vajda (Rubinstein Callingham Polden & Gale for Hopkin & Sons, Mansfield) for the UDM; Conrad Dehn QC, Charles Falconer QC, Raymond Cox, Nicholas Paines and Daphne Loebl (Nabarro Nathanson) for British Coal; Stephen Richards and Philip Havers (Treasury Solicitor) for the President of the Board of Trade.

LORD JUSTICE GLIDEWELL said that the President of the Board of Trade's decisions were not made under some general responsibility for British Coal for which he was accountable to Parliament, but under statutory powers under the Coal Industry Act 1987, and were, therefore, subject to judicial review.

British Coal was not to be equated to other major employers who were in private ownership. The regime for consultation was unique to the coal mining industry. The MCRP was the mechanism to which the employee or employer was entitled or required to refer disputes affecting their relationship. If British Coal had not complied with its obligation under section 46 and the machinery established, its decision was a matter of public law and susceptible to judicial review.

The decisions on 13 October were in breach of the obligations to consult imposed by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and article 2 of Directive 75/129, and wholly disregarded the agreement for the use of the MCRP. The decisions of 19 October took no account of the agreement to use the MCRP.

Section 46 imposed on British Coal a particular obligation as to consultation which was wider than that imposed by section 188 and the directive, and which applied only to the coal mining industry. The agreement to establish the MCRP gave to the unions a legitimate expectation that when British Coal proposed to close any pit or pits, it would consult with the relevant unions by using the MCRP, including the IRB. This was a classic example of legitimate expectation.

The decisions on 13 and 19 October all ignored British Coal's obligation under section 46 and failed to satisfy the legitimate expectation of the mineworkers' unions that the MCRP would be followed unless and until notice to the contrary had been given. The decisions were therefore unlawful and must be quashed.

Consultations in accordance with section 188 and Directive 75 were started on 30 October 1992. Thus, much of the process embodied in the MCRP was already underway. What was lacking was an independent scrutiny. The lack of such an independent scrutiny meant that the decisions of 19 October were irrational. What was needed was the rapid addition to the procedure commenced on 30 October of some independent scrutiny.

The appropriate relief was to grant a declaration.

MR JUSTICE HIDDEN, agreeing, said that British Coal's problems must be resolved within the law, not outside it. Decisions that were necessary must be made within the law and not outside it. The decisions of the President of the Board of Trade and British Coal were palpably amenable to public law and reviewable by the Divisional Court. It was hopeless for British Coal to attempt to argue that its employees had no legitimate expectation of being consulted over pit closures.

Ying Hui Tan, Barrister