Industrial Action And Labour’s New Deal

In this series of blogposts the Institute of Employment Rights explores various policy dimensions associated with the delivery of Labour’s reform agenda in the domain of workers rights. It argues that while several reform proposals contained in Labour’s Plan to Make Work Pay – Delivering A New Deal For Working People seek to address genuine regulatory failures and a number major concerns faced by workers and unions alike, they sometimes lack in detail and/or occasionally appear to fall short of the policy objectives they appear to pursue. Implementing in full Labour’s New Deal for Working people will require a significant policy delivery effort, spanning well beyond the quasi-emergency legislation that the new executive intends to present to Parliament in the first 100-days of government, in the form of an Employment Rights Bill. Ending the Conservatives’ ‘scorched earth approach’ to industrial relations will not be a quick fix. This blogpost focuses on the reforms need to regulate the right to strike for what it is – a fundamental human right.

The Right to Strike – A Fundamental Human Right

The right to take industrial action is a fundamental human right. It is guaranteed by innumerable international treaties and by dozens of those countries which have written constitutions.

Even countries without a written constitution, like the UK, acknowledge the right to strike.  In legal language the right is essentially a freedom to take industrial action collectively without either the union or workers being subjected to legal restraint or penalisation (other than the loss of wages for not carrying out the relevant work). UK courts now acknowledge that the right to strike is a fundamental right.

The right to strike is usually derived from a wider right: freedom of association.  Freedom of association is not confined to freedom merely to form or join an organisation it also implies the right to do the things for which the association was formed.

Industrial action is one of the means of carrying out the fundamental purposes of a trade union, aptly described by Sydney and Beatrice Webb as ‘a continuous association of wage earners for the purpose of maintaining or improving the conditions of their working lives’.

Of course, there are limits on the legitimate purposes of all kinds of organisation and on the kind of acts they can legitimately carry out. Inevitably there are legal limitations to the right to take industrial action – across the globe.

The Labour Party programme

In A New Deal for Working People, the Labour Party enthusiastically endorsed at its Conference in 2021 and again in 2022, addressed the excessive restrictions on the right to strike in the UK. It pointed out that:

‘The imbalance of power between individual workers and employers means that it is essential that workers are able to band together to improve their bargaining power. … Restrictions on trade union activity are holding back living standards and the economy … Even before the Trade Union Act came into force, the UK already had one of the most regulated systems of industrial action in the world, with unions having to comply with complex and often unnecessary legal requirements. These restrictions mean workers are denied their fair share of the wealth they create, … The principle of solidarity of workers being able to support each other is an important democratic freedom and is vital to a healthy economy and society.’

A New Deal committed Labour to repealing the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023. It undertook to repeal unspecified legislation which places ‘unnecessary’ restrictions on trade union activity. It promised to allow trade unions to use secure electronic and workplace ballots and to simplify notices of industrial action, and, of great significance, it stated that:

‘The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organization and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union.’

These proposals underwent revision during 2023-24 but the main elements in relation to industrial action remained.

In May 2024 the latest document, Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People was published in time for the election. The Election Manifesto promised to implement it in full. Labour’s Plan promised to:

‘update trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations are based around good faith negotiation and bargaining. This will end the Conservatives’ scorched-earth approach to industrial relations, ushering in a new partnership of cooperation between trade unions, employers and government and putting us in line with high-growth economies that benefit from more cooperation and less disruption. …’

It undertook to ‘allow modern, secure, electronic balloting and workplace ballots’ and to repeal the 2016 and 2023 Acts, but did not mention simplification of the ‘complicated balloting and notice rules designed to make industrial action and union organising more difficult’ (as A New Deal put it). Nor did it mention the commitment to ensuring ‘that UK law complies in every respect with the international obligations ratified by the UK’.

However, those undertakings were not denounced and, given that the document’s title dedicates it to delivering A New Deal, it would be cynical to assume that these commitments have been secretly abandoned. They clearly fall within the express promises  to ‘update trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity’ and to abandon the Tories’ ‘scorched earth approach to industrial relations’.

Compliance with treaty obligations

The right to strike is a fundamental human right protected by a multitude of international treaties ratified by the UK. Compliance with the international law obligations of a State is an essential element of the Rule of Law about which the Labour Party in opposition has expressed its very firm commitment.

The fact is, shamefully, that the UK is, and has been for many years, in violation of many of those international legal obligations concerning industrial action. These are, principally, as follows.

Convention 87 of 1948 on Freedom of Association and Protection of the Right to Organise (C87) is one of the Core Conventions of the ILO. The UK was the first Member State to sign and ratify C87. It is now one of the most ratified of all ILO Conventions. It provides that each Member State undertakes to give effect to various rights of trade unions and employers’ associations. Amongst these are the rights of workers’ organisations ‘for furthering and defending the interests of workers’ (article 10):

‘to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.’ (Article 3(1))

Unsurprisingly, since the 1950s (and in hundreds of cases since) the (tripartite) ILO Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR), have held that the right ‘to organise their … activities’ protects the right of unions to organise strikes (and of workers to participate in them).

These bodies have found that UK law on industrial action is in violation of C87 repeatedly – since as long ago as 1989.

The New Deal also specified compliance with the European Social Charter (ESC). The latter has nothing to do with the EU, though compliance with it is mandated by the post-Brexit EU-UK Trade and Cooperation Agreement, the first time the Charter has been mandated in a free trade agreement. It is a charter of rights adopted by the Council of Europe (in addition to that body’s European Convention on Human Rights). It sets out rights in more detail. Article 6(4) specifically provides for the right to strike.

Although the UK has not accepted all the terms of the Charter,  it has accepted Art.6(4).  Compliance with the Charter is overseen by a distinguished committee of expert jurists, the European Committee on Social Rights (ECSR), elected by the Parliamentary Assembly of the Council of Europe. On a cyclical basis, the ECSR reviews the compliance of Member States with the Articles they have ratified. It reports to the Committee of Ministers.

Since 1984 the UK has been found to be in breach of Art.6(4) on each occasion the ECSR has examined the compatibility of UK industrial action law with it.

Scale of the challenge

Several of the concerns addressed by both the ILO and the Council of Europe will be addressed by the proposed repeal of the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023, as well as the plans not to restore the Tory regulation banning the use of agency labour to break strikes (a measure struck down by the courts in 2023).  But that will not be enough, as many of the restrictions introduced between 1980 and 2016 will remain on the statute book in breach of our international obligations.

One area where change is urgently required is in relation to solidarity and sympathy action, the need for which was cruelly exposed during the P&O dispute in 2022, when the union was rendered powerless to deal with an employer who had dismissed and replaced an entire workforce.  Following a complaint to the CFA, the Committee repeated late last year that ‘a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful’ (para. 647).

The Committee also noted that ‘it had previously requested the UK Government to take the necessary measures to ensure that sympathy strikes were protected under the law’, and now asked ‘the Government to engage with the social partners to overcome challenges regarding the legislative prohibition on sympathy strikes, in conformity with freedom of association’ (para. 647). That request should not be met with the silence on this issue which has been characteristic of the previous 35 years.

Other violations found by the ILO supervisory bodies include: the narrow purposes for which industrial action may be taken (which must relate ‘wholly or mainly’ to disputes between workers and their own employer about a narrow range of matters); the prohibition of protest strikes aimed at criticising a government’s economic and social policies; and the restriction of action in support of workers overseas);  the limitation of the right to picket to one’s own place of work; the interference with trade union powers to discipline members who refuse to take part in lawful action; and the inadequate protection from dismissal for workers who do take part, have all been held to breach the UK’s international obligations.

For these reasons it is not possible to draw a line at the repeal of the 2016 and 2023 Acts and pretend that all will be well: the entire Thatcher/Major legacy has to be confronted.  Apart from the foregoing, this means also looking again at the notice and ballot rules. Not only to ensure that electronic and workplace voting is permitted in industrial action ballots (as encouraged by the ILO), but also to address the continuing international criticism about the requirement for mandatory notice to the employer of a union’s intention to hold a strike ballot.  This is said to be an ‘excessive’ requirement, given all the other restraints under which trade unions labour, an aspect of the ‘volume and complexity’ of industrial action law which constitutes ‘an incursion upon the rights guaranteed by’ international law.

Thus while the repeal of the 2016 and 2023 Acts will go a long way to restoring the UK’s compliance with international law, the longstanding incompatibility of so many aspects of the legislation of the 1980s and 1990s will remain an affront to the Rule of Law until repealed or amended. Those incompatibilities clearly fall within the stated objectives of Labour’s Plan.

Conclusion

The legal restrictions on the right to organise or participate in industrial action in the UK are extensive.  A recent academic study by professors at Cambridge University compared the labour laws of the UK and other leading economies in the OECD. It found that the UK’s laws on industrial action are ‘significantly weaker than the OECD average’ and that:

‘Among the factors depressing the UK’s score are the complex rules governing ballots and notices that make taking industrial action in the UK a difficult endeavour, compared to laws in other developed countries.’

Indeed, so weak is UK law with respect to the right to strike that the UK scores zero for most of the indicators in this group.

The study went on to point out that laws on notice and ballots are much more complex in the UK than elsewhere.

The effect of amending our law to conform to our international legal obligations would be transformational. It would confer ‘voice’ to workers and restore balance in collective relations by removing those ‘anachronisms that work against cooperation, compromise and negotiation’. These are all goals stated in Labour’s Plan. The demand that UK industrial action law should, at the least, meet the standards of those international laws which the UK has ratified and by which it is notionally bound seems so modest. So far it is not expressed in Labour’s Plan. No doubt it will be evident in the Employment Rights Bill.