The statutory power under which the Home Secretary regulates the qualifications of newly appointed probation officers enables him to prescribe no qualifications and to delete the requirement that probation officers should have a particular academic qualification.
The Divisional Court dismissed an application for judicial review of the Home Secretary's decision to make the Probation (Amendment) Rules 1995 which abrogated the requirement that newly appointed probation officers should have a particular academic qualification.
The 1995 Rules were made under section 25(1)(c) of the Probation Service Act 1993 which provides that: "The Secretary of State may make rules - (c)regulating the qualifications, manner of appointment and duties of probation officers." The 1995 Rules deleted rule 26 of the Probation Rules 1984 which required that before anyone could be appointed a probation officer they must have been awarded a Certificate of Qualification in Social Work by the Central Council for Education and Training in Social Work or another equivalent qualification approved by the council.
The Home Secretary's position was that rule 26 dis-couraged potentially suitable people from applying to be probation officers because they lacked a formal qualification, and he was satisfied that probation committees would only appoint those who were able effectively and properly to perform the duties of a probation officer. A 1994 Home Office report on probation officer recruitment and qualifying training recommended that the requirement of CQSW qualification should be abolished.
NAPO argued that in the statutory and historical context of the 1993 Act, a failure to specify any qualifications would frustrate Parliament's intention. The Home Secretary argued that he had a discretion whether or not to prescribe qualifications.
Edward Fitzgerald QC and Gavin Millar (Hodge Allen Jones) for the NAPO; Kenneth Parker QC (Treasury Solicitor) for the Home Secretary.
Lord Justice Kennedy said that in the 1993 Act there were many sections where the language was clearly such as to impose a duty. They illustrated the ability of the parliamentary draughtsman to use appropriate words to mark the distinction between a discretion and an obligation.
Although the use of permissive words in a statute was not necessarily decisive and there might be a duty to act, that line of reasoning was really of no assistance to NAPO. The responsibility for appoint-ing probation officers had since 1925 been vested in probation committees with some degree of overall supervision by the Home Secretary. He had had the power to make rules to "prescribe the qualifications" or to "regulate the qualifications" and to a limited extent he had exercised that power.
In 1984 the Home Secretary was persuaded that a particular educational qualification then available should be a pre-requisite to appointment and so rule 26 specified that qualification. Recently he had been persuaded that a social work qualification was no longer appropriate so rule 26 had been revoked.
But the act of revocation was itself a regulation of the qualifications of potential appointees. That was why it fell within the discretionary power given to the Home Secretary by section 25(1)(c). It removed a potential obstacle to appointment, namely the lack of a social work qualification. The other qualifications considered to be appropriate were left, as they always had been, to probation committees to determine.
The Home Secretary had not therefore acted to create a void, except in so far as he no longer prescribed a particular educational qualification as an essential pre-requisite. He did not do so until 1984, although the statutory words had remain-ed substantially unchanged since 1925, and any duty (as opposed to power) to do so could not be read into the permissive statutory words.
If it were common ground that the educational qualification introduced in 1984 was no longer appropriate, and that there was at present no satisfactory alternative, it was difficult to see how the application could even have been argued.
Mr Justice Forbes agreed.
Ying Hui Tan, BarristerReuse content