Anti-strike laws: what they could mean for the legal profession

Jonathan Fenton-Harvey assesses the government’s strike laws and the plausible legal battle we could see over their implementation

Amid a growing wave of strikes across many sectors in the UK and an ongoing tug-of-war between Westminster and the trade unions, the government has considered implementing tougher laws to curtail those who are striking. Owing to a backlash over a needed increase in payment rates, it affects key sectors including the NHS and the Royal Mail, Westminster said, it will protect these key services from disrupting

Prime Minister Rishi Sunak has said that he will look into implementing “tough new laws to protect people”, while dismissing the “unreasonable” pay increase demands from striking workers.

“We hugely value the work of our public services and we’re reaching out to unions to have an honest conversation on pay, conditions and reform,” said Sunak.

“Industrial action is disruptive for everyone - from people relying on essential services to get to work or care for their family, to hard-working business owners whose sales suffer - it also costs those striking at a time when family budgets are tight.”

At the same time, there have been alleged legal violations from these proposed laws, as they would contradict many of the international labour treaties the UK is a part of and even some of the UK’s own laws. Thus, lawyers and unions alike have warned there could be future legal challenges to these proposed laws.

Moreover, with the current uncertain political landscape, such as a general election within the next two years, the future of strike laws are still equally uncertain, thus it will be important to take note of how these changes can impact the work of those within the legal profession.

Proposed laws

Among the proposals are ensuring that some trade union members are made to continue working during the strikes to ensure a “minimal level of service” is upheld.  These have targeted around half a dozen services including the health service, rail, education, fire and border security and nuclear commissioning.

At the time of publication, the specific details of this law are unclear, e.g., how many trains would run on a certain day or what type of emergency would require an ambulance being sent to you. Thus, ensuring these details can be implemented coherently, will be a challenge for the government to address.

According to Business Secretary Grant Shapps, the measures are being introduced to "restore the balance between those seeking to strike and protecting the public from disproportionate disruption". The government has also announced that it does not intend to penalise individuals, rather the legislations aims to ensure essential services are upheld and protected amid mass walkouts.

For now, strikes would be deemed illegal if trade unions refused to provide the ‘minimum level of service’. This means bosses from the targeted sectors would have the right to sue unions and dismiss employees, should they strike and not abide by these regulations of providing ‘minimum level of service’.

For those who have supported the strikes, there could therefore be concerns that their abilities to strike may be curtailed. Indeed, the head of the Fire Brigade Union warned the minimum service level laws would most likely prevent strikes from occurring, thus taking away labour action rights from workers. Showing the likely defiance which we could expect to see from the government’s announcements, the head of the railways union warned strike action would still continue unless a mutually acceptable deal is made with the unions to increase the sectors workers’ pay – a sentiment that is evidently held across the other striking sectors.

Currently, as the current legislation is limited to what the government deems to be ‘important public services’, it could be argued these public services are ones for which the government could be held responsible for the implications of strike action, such as ambulance arrival times, long waiting lists for operations and hospital appointments.

Legal challenges

Unions such as the Trades Union Congress (TUC) have already indicated this could constitute a breach of the Human Rights Act 1998, while warning that unions will take this to the courts.

Moreover, rather than curtailing the strikes, the minimum service levels pledges could inadvertently prolong the strikes and simply reduce them in the short term, as unions would be unable to secure their demands after generating enough leverage by triggering disruption in the services.

The new legislation aims to build on current striking laws which seek to ensure vital services are always protected from strikes, as a small number of professions are currently legally unable to strike. These include the police forces, while some nurses are also unable to strike if their patients’ wellbeing would be considered at risk.

Yet, further legislation to prevent strikes could also face opposition, particularly from the House of Lords. After all, the Conservative Party’s 2019 manifesto said only the transport sector would be targeted to introduce minimum level services, so these strikes would be considered to go against the party’s own pledges.

Some of the key legal obligations of the UK to consider are Convention 87 of the International Labour Organisation on Freedom of Association and Protection of the Right to Organise, while Article 11 of the European Convention on Human Rights (ECHR) is another crucial international treaty that had been incorporated into UK law.

Going forward

Of course, due to the shifting political landscape within the government and the nature of these short-term changes needing short-term solutions, laws could keep adapting.

Clearly, unions have indicated they will resist any new legislation from the government to curtail strikes and take court action to ensure the strikers’ rights are upheld, largely based on human rights grounds and to meet the UK’s own labours laws. Indeed, we could certainly expect to see further legal challenges over the laws and what they could define as ‘minimum levels of service’ – which could prove continuous itself.

Asides from the Prime Minister’s latest proposals, the law to uphold minimum levels of service may alone be ineffective. Due to the mentioned lack of clarity over the definitions and further sets of regulations, legislation may be needed to define the minimum standards within these key sectors. Therefore, rather than a straightforward implementation of any new laws, we could expect to see a longer drawn-out process of parliamentary discussions, legal challenges and most likely strikes, until any laws would be implemented.

Moreover, it is also important to note the current political landscape and how this could impact future strike laws. A general election is due to be held within the next two years, and the opposition Labour Party have been clear about their intentions to repeal the Conservative government’s laws if they do come to power following the next election.

While those in the legal profession will certainly be mindful of these changes, it will be important to adapt as the laws continue to expand. Clearly, as has been proposed, a longer series of legal battels and further legislation is likely to be on the table in the near future.