Would an anti-cuts general strike be legal?
It has often been argued that a general strike against austerity would be illegal under Britain’s draconian anti-union laws. But a recent booklet argues that the European Human Rights Act provides a defence for political walkouts. Luke Cooper spoke to co-author of Days of Action: the Legality of Protest Strikes Against Government Cuts, John Hendy QC, to discuss his findings and how the could impact on the trade union movement.
LC: You’ve recently argued there is a legal basis for an anti-austerity general strike. Could you explain what you mean by that?
JH: In the booklet, which we summarise in the Guardian article, we argue that if the TUC called a day of action on a working day and, as a consequence, a lot of people left work to join the protest then that would be protected by Article 11 of the European Declaration of Human Rights. The European Court of Human Rights has held on a number of occasions that it is in breach of Article 11 to punish people for protesting against government policy.
LC: And article 11 is about freedom of association, is that correct?
JH: Freedom of assembly and freedom of association, including, in particular, the right to join a trade union for the protection of a person’s interests.
LC: You’re talking specifically about a one-day action. Would your argument be affected if the unions were to strike for a longer period?
JH: It shouldn’t be, but the cases that the European Court has so far dealt with have always been single days of protest action, and the court has ruled that Article 11 provides protection for such walkouts.
If there were to be a longer strike with the purpose of exerting economic pressure to change government policy, then it might not be quite as clear-cut.
Nonetheless, we believe the position would, in principle, be the same. But we proceed cautiously in these things and nothing is ever certain when it comes to the law.
LC: Are judgments from the European Court of Human Rights binding?
Member States of the Council of Europe ratify the European Convention of Human Rights and thus agree to be bound by the decisions of the European Court of Human Rights. The fact that the European Court says a particular right is protected doesn’t mean that it automatically takes effect. The courts in the UK might say there is a conflict between a piece of British legislation and a decision of the European Court of Human Rights, in which case it is up to the government to legislate to correct that conflict. Frequently the courts are able to resolve any conflict by reinterpreting the law in line with a European ruling.
LC: You do a lot of work for the trade unions. Are they thinking of taking action on the back of the legal arguments you’ve provided?
JH: I do legal work for the trade unions but they don’t share with me their industrial strategy! What Professor Ewing and I are saying is that if the TUC decided that a day of action on a weekday against government policy was something that they wanted to do, and believed would be effective, then they may well have a legal defence under Article 11 of the European Convention of Human Rights in the event of legal challenge.
The TUC took the decision a few days ago to give consideration to the practicalities of a general strike against the government’s austerity measures. The legal argument is one such practical consideration. There are also industrial and political considerations. Those might well be more important. All this is for the TUC to weigh up, to see if this is a path they wish to go down. We’re just saying that a day of action on a weekday should not be automatically ruled out on legal grounds since it may very well be lawful.
John Hendy QC is a leading industrial relations barrister. You can read the booklet that he co-authored with Professor Keith Ewing, Days of Action: the Legality of Protest Strikes Against Government Cuts, at the Institute of Employment Rights website.