Lord Justice Glidewell dismissed an application by the National Union of Mineworkers, the National Association of Colliery, Overmen, Deputies and Shotfirers and other applicant miners for orders that the declaration of the Divisional Court given on 21 December 1992 be varied and for further declarations.
On 21 December 1992 the Divisional Court gave judgment in the applicants' application for judicial review of British Coal's and the President of the Board of Trade's decisions on 19 October 1992 to close 10 collieries. It quashed the decisions and granted a declaration that British Coal had acted in breach of the unions' legitimate expectation that before a final decision on the closure of 10 collieries was reached, they should be consulted according to a procedure substantially to the same effect as the modified colliery review procedure (MCRP), including some form of independent scrutiny: the Independent, 4 February 1993.
In January 1993 British Coal gave notice that it proposed to consult about the closure of the 10 pits but did not propose to use the MCRP.
The applicants argued that (1)a report by an international mining consultancy, as proposed by British Coal, could not amount to an independent scrutiny and the consultancy was not equipped to deal with the wider social issues and (2) British Coal could not terminate the MCRP for the 10 closures and use it for others unless it gave notice that it was not going to use the MCRP and allowed consultation as to an alternative consultation procedure.
John Hendy QC, Jennifer Eady and Keir Starmer (Stephens Innocent) for the applicants; Nicholas Underhill QC and Daphne Loebl (Nabarro Nathanson) for British Coal; Philip Havers (Treasury Solicitor) for the President.
LORD JUSTICE GLIDEWELL said that British Coal argued that the court had no jurisdiction to grant the relief sought because it was functus officio because it had discharged its function and had no more power to deal with the matters raised: R v Cripps, Ex p Muldoon (1984) 2 All ER 705.
It also argued that it would be premature to grant the declarations sought because no decisions had been made on the form of consultation, the use of the consultancy or closures and that it was only when decisions were made that they could be challenged.
Those submissions were correct. The Divisional Court had no jurisdiction to grant the relief sought. If it did have jurisdiction, it was premature to grant the relief and it would be refused. The application was refused.
His Lordship was asked to and gave guidance although it could not bind anyone else. The view that it was necessary for British Coal either to terminate the MCRP completely or to utilise it with respect to all future closures was wrong.
Although the expectation of its use was breached, it might remain an agreed procedure for other closures.
If that was to be British Coal's stance it should or would be well advised to inform the unions at an early stage whether it intended to operate the full MCRP to all other closures. If it did not make that relatively clear at an early stage, British Coal might store up problems for itself.
Ying Hui Tan, Barrister