Days of Action The legality of protest strikes against government cuts
by K D Ewing and John Hendy QC
K D Ewing is Professor of Public Law at King’s College London. He is President of the Institute of Employment Rights and Legal Editor of the journal International Union Rights.
John Hendy QC is is a barrister specialising in trade union law at Old Square Chambers. He is Chair of the Institute of Employment Rights and President of the International Centre for Trade Union Rights. He is a visiting professor in the School of Law at King’s College, London and in the Faculty of Law at University College, London.
This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibilty of the Institute is limited to approving the publication as worthy of consideration within the labour movement.
ISBN 978-1-906703-13-4 September 2011 Published by the Institute of Employment Rights, IER, 4th Floor, Jack Jones House, 1 Islington, Liverpool, L3 8EG; email office@ier.org.uk Design and layout by Smith+Bell Design (www.smithplusbell.com) Printed by The Russell Press (www.russellpress.com)
Contents PREFACE ................................................................................................................................................................iii CHAPTER ONE Introduction ............................................................................................................................................................1 CHAPTER TWO Protest and general strikes in the United Kingdom ....................................3 CHAPTER THREE International labour standards ..................................................................................................7 ILO Convention 87 ..............................................................................................................................8 Right to Strike ....................................................................................................................................8 Political Protest Strikes ....................................................................................................10 Convention 87 and the United Kingdom ..................................................11 Convention 87 and the Contract of Employment ........................12 European Social Charter ........................................................................................................13 CHAPTER FOUR The European Convention on Human Rights ....................................................15 Scope of Convention Rights ..............................................................................................16 Freedom of Assembly ..........................................................................................................17 Freedom of Association....................................................................................................18 Limits on Convention Rights ............................................................................................21 Prescribed by law ....................................................................................................................22 Legitimate aim ..............................................................................................................................23 Necessity in a democratic society ..................................................................24 The UNISON case ............................................................................................................26 Distinguishing UNISON ............................................................................................28 Days of Action i
CHAPTER FIVE The Human Rights Act ......................................................................................................................31 The Question of Tortious Liability ..............................................................................32 Lancing the Tort ..........................................................................................................................33 Defence of Justification ..................................................................................................35 The Question of Statutory Immunity ......................................................................37 Human Rights Interpretation ....................................................................................38 Declaration of Incompatibility ................................................................................39 CHAPTER SIX Conclusion ..........................................................................................................................................................43 ENDNOTES ........................................................................................................................................................45
ii Days of Action
Preface In this paper, we consider whether a Day of Action called by the TUC and trade unions, taking place on a weekday and intended to protest at the government’s cuts and austerity measures, could be lawful in the UK in the light of recent jurisprudence of the European Court of Human Rights. We conclude that such a call and participation in the action should both be protected by Article 11 of the European Convention on Human Rights and Fundamental Freedoms and we go on to consider how that conclusion would impact on domestic law.
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iv Days of Action
Chapter One Introduction The ETUC called a European Day of Action across all the member States of the European Union on 29 September 2010. The protest was against the austerity measures adopted by virtually all EU States and by the EU itself in consequence of the financial crisis. Hundreds of thousands of workers left their work and took part. But not in the UK. The 29 September was a Wednesday and the TUC did not call on British workers to take action on a working day. On 26 March 2011 the TUC did call a national Day of Action and 500,000 people marched from the Embankment to Hyde Park in London (and thousands more in Belfast). That was on a Saturday. No doubt there were and are good tactical reasons why the TUC has not called a Day of Action on a working day, such as a consideration that attendance at rallies would be greater on a Saturday than on a working day, or a desire to avoid media criticism that business would be harmed and economic recovery held back, and so on. But no doubt too, the TUC was inhibited by the view that a Day of Action on a weekday would involve many employed trade unionists taking strike action and that the law here prohibits strike action which may have a political motive, even though “there is no hard and fast line between industrial action and political action�.1 That legal analysis is generally regarded as trite law. In this paper we examine whether that view of the law is in fact sustainable in light of recent legal developments. First, it is necessary to consider what might be involved if the TUC (and affiliated unions) did appeal to workers to leave work and take part, on a working day, in a national or international Day of Action against austerity measures believed to result in hundreds of thousands of job losses, cuts in pay, lower pensions, loss of benefits, and closures and reductions of public Days of Action 1
services. We assume that such a Day of Action would involve a rally or rallies organised by the TUC (rather than a mere “stayaway� of the kind sometimes called by COSATU in apartheid South Africa) to express protest at government policy. It goes without saying that the intention of the TUC would be to conduct the rallies peacefully. The right of peaceful assembly is therefore invoked. For the purpose of the paper we have assumed that a call to attend a rally to protest against the austerity measures would be lawful in itself. We assume too, that if called on a working day, this would constitute an inducement to participate in a general strike, whether that was (actually or intentionally) the primary or merely an incidental feature of the day. The legal analysis therefore, needs to consider the legitimacy of a call to participate in peaceful protest which necessarily involves taking strike action in order to do so.
2 Days of Action
What is the Institute? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think-tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation. The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Jim Mortimer, Tess Gill and the general secretaries of Britain’s largest trade unions. The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively. Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees. If you are interested in subscribing or would like to know more about the Institute, then contact us at: IER, 4th Floor, Jack Jones House, 1 Islington, Liverpool, L3 8EG or email us at office@ier.org.uk. Or visit our website at www.ier.org.uk
In this paper, the authors consider whether a Day of Action called by the TUC and trade unions, taking place on a weekday and intended to protest at the government’s cuts and austerity measures, could be lawful in the UK in the light of recent jurisprudence of the European Court of Human Rights. They conclude that such a call and participation in the action should both be protected by Article 11 of the European Convention on Human Rights and Fundamental Freedoms and go on to consider how that conclusion would impact on domestic law.
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