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Pay freeze for teachers ! Is it legal ?
"A two year pay freeze will be introduced from 2011-12 for public sector workforces, except for those earning £21,000 or less."
That was Chancellor of the Exchequer, George Osborne inflicting the pain in his budget speech on 22nd June 2010. He made it clear that he intends it to apply to teachers and to others whose pay is settled by public sector pay review bodies.
But just a moment. Is that entirely legal ?
Kenneth Clarke was sitting not too far away and perhaps, if his memory of his own words is long, he might have shifted uncomfortably on his patch of leather seated bench. It was the same Ken Clarke who as Secretary of State for Education and Science, introduced the legislation to establish the School Teachers Review Body in April 1991. Ken was especially concerned then to assert the independence of the Review Body and he assured the House of Commons -
“The body will not be subject to a predetermined financial constraint, but …. I shall direct it each year as to considerations to which it is to have regard.”
The legislation Ken Clarke was talking about was changed a little in 2002 but it remains essentially the same and it does have the purpose of giving statutory authority to an independent pay and conditions review body for teachers. Admittedly, it’s always been the case that the Review Body only recommends and the government can override its recommendations. However Ken had something to say about that too in 1991 -
“I am saying today that we will determine teachers' pay in the light of the independent recommendations of the review body and depart from them only if there are clear and compelling reasons to the contrary.”
It’s fair to add as well that George Osborne, and others who take his side, seem pretty likely to argue that the economic situation they say we’re in gives them pretty clear and compelling reasons for taking control.
However, that doesn’t seem to justify declaring to the House of Commons what will happen without even the hint of a suggestion that the review body will have anything to do with it. Even Ken Clarke was only setting up the Government’s clear and compelling reasons escape clause as one to be resorted to after a Review Body report, not as a reason for completely ignoring it.
Back in 2008 the Review Body recommended, and the then government accepted, a three year pay settlement. After George Osborne’s budget, Education Secretary, Michael Gove, confirmed that phase 3 of that settlement, the 2010 pay award will be implemented in September this year. So the promised big freeze won’t set in until 2011.
But what of the review body ? They haven’t, of course said anything yet about 2011 and beyond. The legislation is perfectly clear that the Secretary of State can’t do anything about teacher’s pay without first considering a review body report and, as a general rule of law, he’s not allowed to close his mind to what the review body has to say before its members have even had the chance to consider the evidence. From the point of view of teachers, even if they think the final outcome is already sculpted in stone by Michael Gove and George Osborne, they appear to have the legal right at least to find out if the review body is on their side.
Education Secretaries have a bit of a reputation for being rather cavalier with the review body when it suits them. One of them famously failed to persuade a High Court judge that the Queen had given him the authority to do something the review body had not recommended and Parliament had not approved, but he was not alone in overlooking the review body when it suited. George Osborne’s clear negation of his colleague’s promises from long ago do seem pretty blatant now.
Yet, despite the obvious contradiction, it’s not entirely clear that Mr. Osborne’s statement is legally flawed. The legislation doesn’t actually cope with the idea that a Secretary of State, who cannot take a positive step without the review body, may escape the problem by doing absolutely nothing, that is by making no reference to the review body and simply allowing the existing legally authorised pay scales to run on, unreviewed, unconsidered and unchanged – effectively a pay freeze not by commission but by omisson.
The law is often bizarre. Can it be so bizarre that the only thing a Secretary of State can do to teachers’ pay without a report from the STRB is freeze it ? We may yet see that question before a judge, but, whether or not that happens, and, if it does whoever wins, teachers will have discovered yet again, that the review body they were repeatedly told they could trust, has so little real independence and influence that when other considerations are pressing, the government will scarcely notice its existence