Does Anti-Strike Legislation Break the Law?
Last week it was announced that the government plans a new wave of reforms that will make strikes much less effective after industrial action hampered a number of important services over the festive period.
The basic idea is that ‘minimum safety levels’ of service must be maintained during strikes although it is not entirely clear what that yet means in any given context. For functions like fires, ambulance, and rail it is said that the government will enter into consultation. For other professions like border security, education, and health services more generally, consultation will only happen if a voluntary position is not agreed with unions.
Of course this will undermine the effectiveness of strike action which, by its nature, is supposed to be disruptive but would the measures contravene human rights law?
The right to strike is protected by Article 11 of the European Convention on Human Rights which states:
Article 11
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
This does not explicitly allow for the right to strike but the right of an individual “to join trade unions for the protection of his interests” has been interpreted in cases like Wilson and Palmer v UK (2002) to include the right to strike because it is a way for the worker to protect their interests in the last resort. As such domestic legislation like the Trade Union and Labour Relations (Consolidation) Act 1992 must be interpreted by the courts in line with that right.
Unions are therefore confident that restrictions on the right to strike, like those proposed by the government, would be unlawful and not stand up to the scrutiny of the courts. Leave for judicial review has already been granted to challenge the move by the government last year that allows agency workers to cover those on strike. As the government makes changes, the unions are meeting them in court each step of the way.
That is not to say that the unions will necessarily be successful. After all, the right in paragraph 1 of Article 11 is not absolute and is instead qualified by what is mentioned in paragraph 2. It could well be argued by government lawyers that the measures are necessary “in the interests of…public safety”.
While the European Court of Human Rights has previously required member states to provide very good reasons before imposing restrictions on the right of ‘essential workers’ to strike (Federation of Offshore Workers’ Trade Unions and Others v. Norway (2002)), that is not to say it isn’t possible. France and Spain are two other countries that have already passed legislation relating to minimum service levels.
Nevertheless unions are undaunted. Their own lawyers will gladly point to Spain as an example where such laws are not only effectively not in use but have also been subject to considerable censure by judges in that country.
Ultimately restrictions on union activity (including strikes) must not leave workers at risk of not being able to defend themselves from further reductions in pay or diminished work conditions (UNISON v UK (2002)). The thrust of the unions’ argument on the streets and in court will be that the government is not truly interested in safety but only in limiting the right to strike.
This week on the podcast we return to the largest Ponzi scheme of all time. Allen Stanford and the Stanford International Bank defrauded customers of millions. In this episode we examine the actions of the company as the con began to collapse around it.
Episode link: http://uklawweekly.com/2022-uksc-34/
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