McKinnon v The London Borough of Redbridge [2014] EWCA Civ 178

[2014] EWCA Civ 178Case No A2/2013/1770
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
UKEAT049612
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/02/2014
Before
LORD JUSTICE LONGMORELORD JUSTICE JACKSONLORD JUSTICE CLARKE
Between
GORDON McKINNONAppellantTHE LONDON BOROUGH OF REDBRIDGERespondent
Ms Ijeoma Omambala appeared pro bono for AppellantMr Mathew Purchase (instructed by London Borough of Redbridge Legal Services) for RespondentHearing Hearing date: 6th February 2014
Judgment
[1]This appeal is in seven parts, namely: Part 1. Introduction, Part 2. The regulation of parks in the London Borough of Redbridge, Part 3. The disputes which arose within the Redbridge Parks Police Service, Part 4. The appeal to the Court of Appeal, Part 5. The office of constable, Part 6. The position of constables in the Redbridge Parks Police Service, Part 7. Executive summary and conclusion. Part 1. Introduction[2]The issue in this appeal is whether a member of the Redbridge Parks Police Service is entitled to make a claim for unfair dismissal. The employment tribunal held that he is so entitled. The Employment Appeal Tribunal (“EAT”) reversed that decision.[3]The claimant in the unfair dismissal proceedings and the appellant before this court is Mr Gary McKinnon (“Mr McKinnon”). The respondent in the unfair dismissal proceedings and respondent to the present appeal is the London Borough of Redbridge. I shall refer to the Council of the London Borough of Redbridge as “the LBR Council” or “the Council”.[4]Another individual who features prominently in the narrative of events is Mr Harjit Dhinsa (“Mr Dhinsa”). Mr Dhinsa was another member of the Redbridge Parks Police Service, who sought to make a claim for unfair dismissal.[5]Section 15 (1) of the Open Spaces Act 1906 provides:
“(1) A local authority may, with reference to any open space or burial ground in or over which they have acquired any estate, interest, or control under this Act, make byelaws for the regulation thereof, and of the days and times of admission thereto, and for the preservation of order and prevention of nuisances therein, and may by such byelaws impose penalties recoverable summarily for the infringement thereof, and provide for the removal of any person infringing any byelaw by any officer of the local authority or police constable.”
[6]Section 77 of the Public Health Acts Amendment Act 1907 provides:
“Power to appoint officers. The local authority may appoint officers for securing the observance of this Part of this Act, and of the regulations and byelaws made thereunder, and may procure such officers to be sworn in as constables for that purpose, but any such officer shall not act as a constable unless in uniform or provided with a warrant.”
[7]Section 1 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 provides that the order in Schedule 1 to that Act shall have full validity and force. The title of the order in Schedule 1 is “Greater London Provisional Order for Securing Uniformity in the Law applicable with respect to Parks and Open Spaces”. I shall refer to that order as the “London Parks Order”.[8]Article 18 of the London Parks Order provides:
“A local authority may procure officers appointed by them for securing the observance of the provisions of all enactments relating to open spaces under their control or management and of the byelaws and regulations made thereunder to be sworn in as constables for that purpose but any such officer shall not act as a constable unless in uniform or provided with a warrant: Provided that nothing in this article shall be deemed to render applicable to any such officer the provisions of the Police Pensions Act 1921 or any other enactments relating to pensions, gratuities and allowances in respect of police services.”
[9]Section 200 of the Employment Rights Act 1996 provides:
“Police officers.E+W+S (1) Section 8 to 10, Part III, sections 43M, 45, 45A,47, 47C,50 to 57Band 61 to 63, Parts VII and VIII, sections 92 and 93 and, Part X (except sections 100, 103Aand 134A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 100 or 103A)do not apply to employment under a contract of employment in police service or to persons engaged in such employment. (2) In subsection (1) “police service” means — (a) service as a member of a constabulary maintained by virtue of an enactment, or (b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable.” (a) service as a member of a constabulary maintained by virtue of an enactment, or (b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable.”
[10]Since this judgment refers to a number of textbooks and authorities which were not cited in argument, we have allowed counsel to comment on the substance of the judgment, when they saw it in draft, if they so wished. In the event neither counsel wished to do so.[11]After these introductory remarks, I must now explain how parks in the London Borough of Redbridge have been regulated.

Part 2. The regulation of parks in the London Borough of Redbridge

[12]The London Borough of Redbridge is situated in north east London around the area of Ilford, Barkingside and Woodford. It is one of the greenest London boroughs. It contains many fine parks. These include Hainault Forest Country Park, Valentines Park and Claybury Park.[13]Pursuant to section 15 of the Open Spaces Act 1906 the LBR Council has made byelaws in order to ensure that the general public use and enjoy the parks in a responsible manner. Some of the byelaws protect wildlife. Some regulate recreations, for example specifying where people can ride horses or play sports. Some byelaws forbid anti-social behaviour.[14]Part 8 of the byelaws provides:
“47. No person shall obstruct: (a) any officer of the Council in the proper execution of his duties; (b) any person carrying out an act which is necessary to the proper execution of any contract with the Council; or (c) any other person in the proper use of the ground, or behave so as to give reasonable grounds for annoyance to other persons in the ground. …. 49. Any person offending against any of these byelaws may be removed from the ground by an officer of the Council or a constable. 50. Any person offending against any of these byelaws shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.”
[15]There is a substantial overlap with the general criminal law. Any breach of a byelaw constitutes a criminal offence, which may be dealt with by the magistrates’ court. Most criminal offences are also breaches of the byelaws. For example, throwing stones at people is a breach of byelaw 12 and, if successful, also constitutes a breach of the Offences against the Persons Act 1861. Indeed almost any criminal offence committed within the curtilage of a park would constitute a breach of the second limb of byelaw 47 (c). In summary, therefore, every breach of a byelaw is a criminal offence and almost every criminal offence committed inside one of the parks is a breach of the byelaws.[16]It is possible to think of ingenious exceptions. For example, as Christopher Clarke LJ pointed out in argument, if two people sit on a park bench and quietly hatch a conspiracy, they may be committing a serious offence. They would not, however, be contravening the byelaws.[17]In May 2006 the LBR Council established the Redbridge Parks Police Service. The purpose of the Parks Police was to patrol the parks and open spaces of Redbridge and to ensure that all visitors complied with the byelaws. In establishing the Redbridge Parks Police Service the Council was exercising its powers under section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order. I have set out these statutory provisions in Part 1 above.[18]The Redbridge Parks Police Service comprised thirteen officers. They were organised as follows. There were two teams of five constables who patrolled the parks and open spaces. One sergeant was in charge of each team. The two sergeants reported to Mr John Boylin, who was the chief officer.[19]All thirteen members of the Redbridge Parks Police Service were employees of the Council. Accordingly they were issued with job descriptions. They were, however, employees with a special status. They were appointed as constables pursuant to section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order. As required by those provisions, each of the thirteen constables made a declaration before a justice of the peace.[20]The statutory provisions did not require any particular form of words. The form of declaration which the Council drafted and which each constable faithfully read out in front of a

justice of the peace was as follows:

“I ……….. of London Borough of Redbridge do solemnly and sincerely declare that: I will well and truly serve the Queen in the office of Constable in the said London Borough in pursuance of Section 77 of the Public Health Amendment Act 1907 and Article 18 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will to the best of my power secure the observance of the provisions of all enactments relating to parks and open spaces under the control or management of the said London Borough of Redbridge and of the byelaws and regulations made thereunder; and that while I continue to hold the said office of Constable I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Statutory Declarations Act 1835 and the Promissory Oaths Act 1868.”
[21]The Redbridge Parks Police Service commenced operations in May 2006. It operated for five and a half years. The Redbridge Parks Police Service was disbanded in October 2011.[22]Having set out the relevant background I must now turn to the disputes which arose within the Redbridge Parks Police Service.

Part 3. The disputes which arose within the Redbridge Parks Police Service

[23]In May 2006 Mr McKinnon was appointed to be a sergeant within the Redbridge Parks Police Service. The LBR Council appointed a team of five constables to serve under Mr McKinnon’s leadership. One of those constables was Mr Dhinsa. At the commencement of their service both Mr Mckinnon and Mr Dhinsa made the appropriate declarations before a justice of the peace.[24]Unfortunately issues arose between Mr Dhinsa and Mr McKinnon. Mr Dhinsa made a formal complaint that Mr McKinnon had bullied him.[25]The Council suspended Mr McKinnon and carried out a formal investigation. Whilst this investigation was proceeding Mr Dhinsa took further steps against the Council. On the 31st August 2009 Mr Dhinsa presented a complaint to the employment tribunal alleging discrimination. On 30th October 2009 he resigned from his employment as an officer in the Redbridge Parks Police Service. On 27th January 2010 Mr Dhinsa presented a second claim to the employment tribunal, this time alleging constructive dismissal.[26]In July 2010 the Council completed its investigations concerning Mr McKinnon. The conclusion was that three of Mr Dhinsa’s allegations were proved on balance of probabilities. By letter dated 6th July 2010 the Council dismissed Mr McKinnon for gross misconduct.[27]On the 24th September 2010 Mr McKinnon presented a complaint for unfair dismissal to the employment tribunal.[28]As a result of these events both Mr Dhinsa and Mr McKinnon were alleging that they had been unfairly dismissed. A preliminary issue which arose in both sets of proceedings was whether section 200 of the Employment Rights Act 1996 prevented the claimant from pursuing his claim.[29]The employment tribunal listed both sets of proceedings for hearing together for the purpose of resolving the preliminary issue. At this point Mr Dhinsa and Mr McKinnon made common cause. They alleged that section 200 of the Employment Rights Act 1996 did not apply to officers in the Redbridge Parks Police Service.[30]By a decision dated 13th March 2012 Employment Judge Tobin accepted the contentions of Mr Dhinsa and Mr McKinnon. Accordingly he allowed both claims to go forward.[31]The LBR Council was aggrieved by that decision. Accordingly it appealed to the EAT. The EAT allowed the Council’s appeal. By a decision dated 7th June 2013 His Honour Judge Peter Clark held that section 200 of the Employment Rights Act 1996 applied to all constables in the Redbridge Parks Police Service. Therefore neither Mr Dhinsa nor Mr McKinnon could make a claim for unfair dismissal.[32]Mr Dhinsa accepted the EAT’s decision and pursued the matter no further. Mr McKinnon did not accept the EAT’s decision. Accordingly, with the leave of Underhill LJ, Mr Mckinnon appeals to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

[33]By an appellant’s notice dated 28th June 2013 Mr McKinnon appealed against the EAT’s decision on a number of grounds. I need not dwell upon the grounds of appeal as originally drafted. This is because, at the suggestion of Underhill LJ, Mr McKinnon subsequently approached the Bar Pro Bono Unit. Counsel now acting for Mr McKinnon has refined and developed the original grounds of appeal. I must therefore concentrate upon the arguments as they were finally deployed by both parties to the appeal.[34]This appeal came on for hearing on the 6th February 2014. Ms Ijeoma Omambala, acting pro bono, represented the appellant, Mr McKinnon. Mr Mathew Purchase represented the respondent, the LBR Council, as he had done before the EAT. I am grateful to both counsel for their assistance.[35]The Council’s case is that Mr McKinnon falls within section 200(1) of the Employment Rights Act 1996 because the Redbridge Parks Police Service was “a constabulary maintained by virtue of an enactment” within section 200(2) (a). Alternatively, Mr McKinnon was serving “in any other capacity by virtue of which a person has the powers or privileges of a constable” within section 200 (2) (b).[36]Mr McKinnon’s case is that neither limb of section 200 (2) of the Employment Rights Act 1996 is apt to describe the Redbridge Parks Police Service. Accordingly section 200 (1) does not apply to him. As an employee of the LBR Council he has the normal right to make a claim for unfair dismissal.[37]A great deal of argument at the hearing revolved around the fact that Mr McKinnon had been appointed a constable. Therefore, before I delve into these arguments, I must examine the nature of the office of constable.

Part 5. The office of constable

[38]Both constables and justices of the peace hold ancient offices of the common law. The one is executive, the other judicial. Sir William Holdsworth, in his magisterial History of English Law, describes how these two offices have evolved over the centuries. Both offices were established in the Plantagenet period. The first reference to justices of the peace in a statute appears in the preamble to the Statute of Westminster 1363. I have not been able to identify the first statutory reference to constables, but they were certainly operating by the fourteenth century.[39]Constables were elected officials, found in each hundred and township. A constable was responsible for maintaining order in his own area. It was his duty to arrest those suspected of offences and detain them as best he could pending trial (Blackstone’s Commentaries, volume 1 page 338). This sometimes meant accommodating miscreants in the constable’s own home: see Skyrme, History of the Justices of the Peace, (Barry Rose 1994), pages 89 and 231.[40]By the seventeenth century the role of constables was more formalised. Every parish was required to elect a constable. It was customary for every constable to take an oath before the local justices. This process of attestation established him as the holder of an office to which important powers and duties attached. The constable was responsible for maintaining peace within his area. It was also his duty to execute the orders and warrants issued by justices of the peace.[41]Constables, however diligent, were liable to make mistakes from time to time. As Holdsworth explains (volume 10, page 253) the courts were careful to protect constables who had made an arrest for felony acting upon probable and bona fide belief. Lord Mansfield explained the rationale of this rule in Ledwith v Catch-pole (1783) Cald, 294-295:
“The question always turns upon this, was the arrest bona fide? Was the act done fairly and in pursuit of an offender, or by design or malice and ill-will? Upon a highway robbery being committed, an alarm spread, and particulars circulated, and in the case of crimes still more serious, upon notice given to all the sea-ports, it would be a terrible thing, if under probable cause an arrest could not be made: and felons are usually taken up upon descriptions in advertisements. Many an innocent man has been and may be taken up upon suspicion; but the mischief and inconvenience to the public in this point of view are comparatively nothing. It is of great consequence to the police of this country. ”
[42]It can be seen that in the centuries before there was any formal police force, constables acquired both powers and privileges. These powers and privileges were conferred by the common law and recognised by the courts, as a matter of necessity for the maintenance of public order and safety.[43]During the nineteenth century a number of statutes provided for the creation of professional police forces, controlled partly by local authorities and partly by the Home Secretary. Police constables retained their common law powers, but now acted on behalf of the state or the Crown, rather than on behalf of the local authority which appointed them: see Fisher v Oldham Corporation [1930] 2 KB 364; [1930] All ER Rep 96. Nevertheless the jurisdiction of a police constable was limited to a specific area. For example, the oath sworn by a police constable in Oldham was:
“I …………. of …………. Street in the borough of Oldham do declare that I will well and truly serve and act as a constable of the said borough of Oldham for preserving the peace by day and by night and preventing robberies and other felonies and misdemeanours and apprehending offenders against the peace.”
[44]The statute which now regulates the operation of all police forces is the Police Act 1996. Every member of a police force is a constable. Every police constable has jurisdiction throughout the United Kingdom (section 30). The Act provides a number of protections for police constables. For example, section 89 creates the offence of assaulting a constable in the execution of his duty.[45]Section 29 of the Police Act 1996 provides:
“Attestation of constables Every member of a police force maintained for a police area and every special constable appointed for a police area shall, on appointment, be attested as a constable by making a declaration in the form set out in Schedule 4…. before a justice of the peace having jurisdiction within the police area.”
Every member of a police force maintained for a police area and every special constable appointed for a police area shall, on appointment, be attested as a constable by making a declaration in the form set out in Schedule 4…. before a justice of the peace having jurisdiction within the police area.”[46]The form of declaration which a police constable now makes is set out in Schedule 4 as follows:
“’I....................of....................do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.”
[47]A constabulary is an organised body of constables. The most visible and well known constabularies are the police forces. But these are by no means the only ones. Legislation in and after the nineteenth century has provided for the creation of numerous other constabularies. The following are some examples:• The Royal Parks Constabulary established under the Parks Regulation Act 1872, though now disbanded.• The Ministry of Defence Police, established under the Ministry of Defence Police Act 1987.• The British Transport Police originally established under the British Transport Commission Act 1949, but now maintained under the Railways and Transport Safety Act 2003.• The Civil Nuclear Constabulary established under the Energy Act 2004.[48]All of these statutes require the relevant constables to be attested before justices of the peace. Sometimes the statutes specify the form of declaration be made, but they do not always do so. For example, section 53 of the British Transport Commission Act 1949 required a constable in the British Transport Police to make an “oath or declaration in due form” before a justice of the peace, but it did not specify any particular form of words.[49]Most statutes of this kind limit the territorial areas in which the relevant constables can exercise their jurisdiction. See, for example, section 7 of the Parks Regulations Act 1872 and section 31 of the Railways and Transport Safety Act 2003.[50]All constables, both in police forces and in other constabularies, have powers of arrest. These are now set out in section 24 of the Police and Criminal Evidence Act 1984. There has been no formal repeal of a constable’s common law powers of arrest. This is because Parliament did not enact clause 101 (4) of the Serious Organised Crime and Police Bill: see Zander on PACE, sixth edition (2013) at page 151. Therefore the constables’ common law powers of arrest co-exist with their statutory powers, but add little in practice. The most important surviving common law power of arrest is that which arises when there is an actual or anticipated breach of the peace: see Chief Constable of Cleveland v McGregor [2002] EWCA Civ 86 at [20] to [44].[51]Having reviewed the general position of constables in English law, I must now consider specifically the position of constables in the Redbridge Parks Police Service.

Part 6. The positions of constables in the Redbridge Parks Police Service

[52]Ms Omambala began her submissions by pointing to the contrast between the professional constables who serve in police forces and the Council staff who patrol the parks of Redbridge. Police officers have wide investigative powers and a panoply of other powers. Also an elaborate statutory scheme regulates their work. On the other hand the Council employees who patrol the parks of Redbridge do not have such extensive powers. There is no elaborate statutory scheme regulating their work.[53]I agree with Ms Omambala that there is a distinction of the kind she asserts. Police officers are not employees of anybody. They are solely office-holders. As Morison J observed in Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 at 552:
“A member of the traditional police forces is not regarded as an employee because he takes an oath of office and is not to be accountable to an employer for the way he carries out his duties. He is a member of a uniformed service, whose rules and regulations are laid down by Parliament and he is subject to statutory disciplinary procedures.”
On the other hand the thirteen members of the Redbridge Parks Police Service were employees of the Council, who additionally became constables in order to serve in the Parks Police.[54]Although such distinctions exist, they do not mean that regular police officers are “real” constables, whereas officers patrolling the Redbridge parks are not. A police officer is undoubtedly one species of constable, but he/she is not a paradigm or template with which others claiming to be constables should be compared. As set out in Part 5 above, there are many different forms of constable. Some are employees. Some are not. Nevertheless they all hold the office of constable. They all have the basic statutory and common law powers incidental to the office of constable and can exercise those powers within a defined geographical area. In the case of police constables that is now the whole of the UK. In the case of other constables the geographical area of their jurisdiction is more narrowly defined.[55]One feature which is common to all constables is attestation. They all take an oath or make a declaration before a justice of the peace to the effect that they will properly perform their duties as constable. Indeed, as correctly stated in Halsbury’s Laws (volume 84, 2013, page 12 paragraph 3), “the hallmark of the present day constable remains, as in the seventeenth century, his attestation.”[56]In relation to the attestation, Ms Omambala points out that police constables make a declaration in the form prescribed by statute, viz Schedule 4 to the Police Act 1996. On the other hand officers in the Redbridge Parks Police Service have no authoritatively prescribed form of words. The declaration which they make is a form of words drafted by a council official in 2006. This is an adaptation of the form of words prescribed for police constables.[57]I agree that this is so. But it is a distinction of no significance. As demonstrated in Part 5 of above, it has always been the case that some statutes prescribe the words of the declaration or oath, whereas other statutes (providing for the appointment of constables) do not.[58]The conclusion which I come to is this. Despite being Council employees and despite being few in number, all members of the Redbridge Parks Police Service were constables in the full sense of that word. Their jurisdiction was confined to the parks and open spaces of Redbridge. Their remit was to enforce the byelaws and (subject to one or two exceptions as noted in Part 2 above) to stop people committing criminal offences in the parks.[59]The next issue to consider is whether the Redbridge Parks Police Service constituted “a constabulary maintained by virtue of an enactment” within section 200 (2) (a) of the Employment Rights Act 1996. Mr Purchase contended that it did, because the Redbridge Parks Police Service was established and maintained pursuant to section 7 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order.[60]Ms Omambala, for the appellant, challenges that proposition on essentially two grounds. First, she says that the Redbridge Parks Police Service lacked the necessary degree of organisation to constitute a “constabulary”. Secondly, she submits that the statutory provisions upon which the Council relies merely permitted the relevant people to be sworn in as constables. There was no requirement that they be sworn in as constables. Accordingly the Redbridge Parks Police Service was not maintained by virtue of those enactments.[61]In developing her first argument Ms Omambala pointed to the sharp contrast between the complex organisation and structure of a police force and the much simpler set up of the Redbridge Parks Police Service.[62]In my view, this comparison is not helpful, because police officers do not fall within section 200 at all. See Commissioner of Police of the Metropolis v Lowrey-Nesbitt [1999] ICR 401. As previously noted, police constables are office-holders who do not have contracts of employment.[63]Section 200 of the Employment Rights Act 1996 only deals with constables who have contracts of employment. Examples of constabularies which fall within section 200 (2) (a) are the British Transport Police, the Ministry of Defence Police, the Civil Nuclear Constabulary and the Royal Parks Constabulary. Thus in Spence v British Railways Board [2001] ICR 232 the Employment Appeal Tribunal held that the British Transport Police was “a constabulary maintained by virtue of an enactment” within the meaning of section 200 (2) (a) of the Employment Rights Act 1996.[64]Ms Omambala invites us to distinguish Spence because there is a complex statutory scheme for the organisation, control and administration of the British Transport Police. Because the British Transport Police have that degree of organisation, they are properly characterised as a constabulary. Ms Omambala points out that the Redbridge Parks Police Service did not have anything like that degree of organisation.[65]I do not accept this submission. The Shorter Oxford English Dictionary defines “constabulary” as “an organised body of constables or police in an area”. I accept that some degree of organisation is required. A mere gathering of constables would not constitute a constabulary. On the other hand the degree of organisation required will depend upon the number of constables involved and the functions which they are performing. At one end of the scale the British Transport Police comprise a large number of constables with a wide range of responsibilities. The Redbridge Parks Police Service come at the other end of the scale. This comprised a small group of constables. Their function was to patrol the parks of Redbridge, making sure people behaved themselves and complied with the byelaws. The organisation of that body (two teams of five constables headed by two sergeants who reported to a chief officer) was quite sufficient. There was a proper chain of command and the officers all wore uniform when they were on duty. In my view the Redbridge Parks Police Service constituted a constabulary.[66]Ms Omambala submits that even if Redbridge Parks Police Service was a constabulary, it was not “maintained by virtue of an enactment”. I am afraid that I do not accept this argument. It is quite correct that the language of section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order is permissive. Those sections do not require the appointment of the relevant Council officers as constables. The persons who patrol the parks could be ordinary employees of the Council: see section 15 of the Open Spaces Act 1906. The fact is, however, that the Council exercised its statutory power to require that the relevant employees become constables. Mr McKinnon and his colleagues all complied and made declarations before a justice of the peace. Throughout its period of operation, all members of the Redbridge Parks Police Service were constables. Therefore the Redbridge Parks Police Service constituted a “constabulary maintained by virtue of an enactment” within section 200 (2) (a) of the Employment Rights Act 1996.[67]In those circumstances section 200 (2) (b) of the Act has no application. That applies to persons who are not constables, but have the powers or privileges of constables, for example water bailiffs. In case it is relevant, however, in my view the members of Redbridge Parks Police Service are persons who have the powers and privileges of constables. In particular, they have statutory powers of arrest under section 24 of the Police and Criminal Evidence Act 1984. They also have the common law power of arrest in the case of actual or anticipated breach of the peace.[68]Ms Omambala submits that if section 200 applies to the members of the Redbridge Parks Police Service, that is both harsh and unfair. These Council employees do not have any of the elaborate remedies available to members of the police forces and the British Transport Police. I see much force in this submission. I am unable to discern any rational policy reason why members of the Redbridge Park Police Service, who are Council employees, should not be able to recover compensation in the event of unfair dismissal. It is not, however, possible for this court, under the guise of interpretation, to rewrite section 200 in order to remedy what appears to be an injustice.[69]A similar anomaly came to light in respect of prison officers: see Home Office v Robinson [1982] ICR 31. Parliament responded by exempting prison officers from the operation of section 200 of the Employment Rights Act 1996. In the light of this judgment Parliament may wish to consider whether members of Parks Police Services should be similarly exempted. That, however, is not a matter for this court.[70]With some regret I am driven to the conclusion that the Redbridge Parks Police Service is a constabulary analogous to the other constabularies (apart from the police) discussed in Part 5 of the above. Accordingly section 200 of the Employment Rights Act 1996 operates to deny the appellant any remedy for unfair dismissal.[71]If my Lords agree, this appeal must be dismissed.

Part 7. Executive summary and conclusion

[72]Between May 2006 and July 2010 the London Borough of Redbridge Council employed Mr McKinnon as a sergeant in the Redbridge Parks Police Service. On 6th July 2010 the Council dismissed Mr McKinnon for gross misconduct. Mr McKinnon asserts that his dismissal was unfair. He wishes to claim compensation for unfair dismissal.[73]Section 200 of the Employment Rights Act 1996 prevents Mr McKinnon from pursuing such a claim. This is because Redbridge Parks Police Service is “a constabulary maintained by virtue of an enactment” within section 200 (2) (a). All members of the Redbridge Parks Police Service are constables who have made an appropriate declaration before a justice of the peace. The Redbridge Parks Police Service is maintained by virtue of two enactments, namely section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the Greater London Provisional Order for Securing Uniformity in the Law applicable with respect to Parks and Open Spaces (1967).[74]Accordingly the Employment Appeal Tribunal was correct was to reverse the employment tribunal’s decision and to dismiss Mr McKinnon’s claim for unfair dismissal. His appeal to the Court of Appeal is dismissed.[75]I agree with Jackson LJ and with the same regret. In particular I have no doubt that the Redbridge Parks Police Service was a constabulary maintained by virtue of an enactment within the meaning of section 200 (2) (a) of the Employment Rights Act 1996. The obvious answer to anyone inquiring by what right the London Borough of Redbridge maintained a constabulary would be that it was by virtue of the relevant statutory provisions. The phraseology in the subsection is concerned with whether the authority for maintenance of the constabulary is statutory; not whether a statute prescribes how it is to be organised.[76]I agree with Jackson LJ's judgment without any enthusiasm save in relation to paragraphs 68 and 69. Like my Lord I can see no reason why constables who are Council employees (or indeed employees of any other employers) should have no protection from being unfairly dismissed. I would urge Parliament to consider the matter whether with or without the assistance of the Law Commission.

Cited in 8 later judgments