UK Anti-Strike Laws May Be Challenged Under European Rights Law, Say Lawyers

People stand on a picket line during a rail workers strike by members of the Rail, Maritime and Transport Workers Union (RMT), outside London Euston station in London on Jan. 6, 2023. Daniel Leal/AFP via Getty Images

The UK government’s planned legislation to ensure “minimum safety levels” during strikes may be challenged under European human rights law and international labour conventions, employment lawyers have said.

The government said on Thursday that it will introduce a bill in Parliament in the coming weeks to ensure that vital public services will have to maintain a basic function and deliver minimum safety levels during industrial action.

Trade unions will be bound to follow this legislation and will risk the employer bringing an injunction to prevent the strike from taking place or seeking damages afterwards if they do not comply with their obligations.

Richard Arthur, head of trade union law at Thompsons Solicitors said there were “very serious legal question marks” around the government’s proposals.

He said, “The government is referring to minimum ‘safety levels’ and we anticipate legal challenge around what they are and who defines them.”

He added that the new measures do not comply with the UK’s legal obligations under Convention No. 87 of the International Labour Organisation on Freedom of Association and Protection of the Right to Organise, and Article 11 of the European Convention on Human Rights.

He said the legal challenges will not be affected by Brexit, because the alleged breaches will be of conventions that the government has signed up to that come from the Council of Europe and the International Labour Organisation, not the European Union.

International Precedents

But the government said the proposed measures will see the UK align with many countries across the world such as France and Spain that already have minimum service agreements in place.

Talking to broadcasters following the announcement on Thursday, Business Secretary Grant Shapps rejected the suggestion that the planned new law would impact on the human rights of trade union members.

Business Secretary Grant Shapps arriving for a Cabinet meeting in Downing Street, London, on Dec. 20, 2022. Stefan Rousseau/PA Media

He said, “First of all, civilised European nations, France, Germany, Italy, Spain, they all have some form of minimum safety levels.”

He added that the International Labour Organisation has also said that there is “nothing wrong” with such a scheme “when it’s a question of life and death.”

“The idea that there may not be an ambulance coming because there’s a strike on, I think, is unacceptable.

“We’re not proposing to go the full hog. Other countries, parts of America, Canada, Australia, they have legislation which bans those blue lights entirely from going on strike.

“We’re not proposing that. I think it’s very reasonable what we’re suggesting but I think the time has come and it brings us into line with other European nations.”

Labour Vows to Repeal Law

The opposition Labour Party said it opposes the legislation and that the party would likely repeal any such bill if it wins the next election.

Opposition leader Sir Keir Starmer said in a major speech on Thursday that he does not think the legislation idea is going to work.

He said he would “repeal it” should the public put him into Downing Street.

Labour leader Sir Keir Starmer speaks during a visit to UCL at Here East, Queen Elizabeth Olympic Park, London, on Jan. 5, 2023. Stefan Rousseau/PA Media

Talking to the BBC on Friday, Labour’s shadow Treasury minister Pat McFadden said the government is reaching for a “legislative weapon” for political reasons.

He said that the way to resolve the labour disputes is to negotiate a deal, and “this legislation, even if it was enacted, wouldn’t have an impact on these current disputes.”

He added: “The way to guarantee good services is to negotiate to resolve the disputes. Yes, implement reforms and changes that are needed in various sectors. Do that by striking a deal, not by striking a pose.”

‘Short Lifespan’

Employment lawyers predict the proposed legislation, even if passed by Parliament, will not have a lasting impact.

Tom Long, employment partner at law firm Shakespeare Martineau, said the proposed legislation “could have a relatively short lifespan.”

He said, “Aside from the fact that trade unions will be unlikely to accept it without a fight, it may take months to go through Parliament and even if passed, the Labour Party have been vocal about their intention to repeal it if they are elected in the next two years.”

David Hopper, employment partner at law firm Lewis Silkin, said: “It will take time to be enacted and there is no guarantee that it will make it past the House of Lords, as only transport strikes are covered by the government’s 2019 manifesto commitment to introduce minimum service levels.

“If it does become law, it may still not be effective without numerous additional sets of regulations, industry agreements, and even court rulings, which would actually set the particular minimum standards.

“Even then, unions can be expected to resist the new requirements and will almost certainly challenge any enforcement action against them on human rights grounds.”

PA Media contributed to this report.