Lord Hendy (Lab)

My Lords, it is a bit daunting, at 9.50 pm, to speak to a series of amendments relating to the right to strike. I thank my noble friend the Minister for taking time out of her very busy schedule to discuss these amendments, and amendments on collective bargaining, with me last week. The meeting was very amicable and very constructive, but Members opposite will no doubt be pleased to learn that she yielded not an inch on these amendments. None the less, I think it worth while to advance them. Amendment 238 is intended to confer a positive right to strike. Striking and other forms of industrial action constituted a criminal offence until 1875 and were subject to civil liability until the Trade Disputes Act 1906. Since then, the law has undergone various evolutions, until the Conservative Governments passed a series of Acts in the 1980s, consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992, which severely restricted industrial action. Subject to those restrictions, the Court of Appeal in Metrobus v Unite in 2009 held: “In this country, the right to strike has never been much more than a slogan or a legal metaphor. Such a right has not been bestowed by statute. What has happened is that, since the Trade Disputes Act 1906, legislation has provided limited immunities from liability in tort. At times the immunities have been widened, at other times they have been narrowed. Outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract on the part of the strikers and the economic torts as regards the organisers and their union”. As the Court of Appeal put it in RMT v Serco Ltd in 2011: “The legislation therefore secures a freedom rather than conferring a right as such”. Both judgments noted that the European convention and other international laws ratified by the UK protected the right to strike, but that was held to be insufficient to establish such a right in UK law. So there is no positive right to strike in the UK, merely a freedom to take industrial action, protection from what would otherwise be unlawful. My amendment proposes that we should have such a right. In making that case, I do not suggest that such a right should be free of limitations. If this amendment were adopted, the current statutory restrictions on its exercise would remain. The international treaty obligations by which the UK has elected to be bound support the case for my amendment. The UK ratified ILO Convention 87 on freedom of association and protection of the right to organise on 27 June 1949. The ILO, of course, is a tripartite body representing Governments, employers and workers of virtually every country in the world. Though Convention 87 does not expressly mention the right to strike, since the 1950s the relevant supervisory committees of the ILO have held repeatedly that it does so implicitly. For decades, member states have acknowledged that jurisprudence. For example, the UK Government have argued in the ILO: “The right to strike, which, although not expressly laid down in Convention No. 87, was implied by the provision there for the right freely to organise activities”. Independently of Convention 87, the ILO recognises the right to strike. A joint statement issued by the employers’ group, workers’ group and governmental groups in 2015 affirmed that: “The right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation”. I turn to other international treaties ratified by the United Kingdom. The UN Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect freedom of association and the right to be a union member. In 2017, the UN special rapporteur on freedom of association stated: “The right to strike is also an intrinsic corollary of the fundamental right of freedom of association. It is crucial for millions of women and men around the world to assert collectively their rights in the workplace, including the right to just and favourable conditions of work, and to work in dignity and without fear of intimidation and persecution”. Article 8.1(d) of the International Covenant on Economic, Social and Cultural Rights explicitly requires “States Parties … to ensure … The right to strike”. In 2019, the supervisory bodies responsible for the two covenants I have just mentioned—respectively the Committee on Economic, Social and Cultural Rights and the Human Rights Committee—issued a joint statement on the basic principles of freedom of association common to both covenants, stating, “the right to strike is the corollary to the effective exercise of the freedom to form and join trade unions”. In 1997, the Committee on Economic, Social and Cultural Rights addressed in relation to the United Kingdom the very issue raised by this amendment, holding that: “The Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike”. This led the committee to recommend that the right to strike be established in UK legislation because “the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of article 8 of the Covenant”. In 2002, the committee reiterated its concern that “failure to incorporate the right to strike in domestic law constitutes a breach of article 8 of the Covenant”, and repeated its recommendation that the right to strike be incorporated in UK legislation. It cannot be acceptable that the UK will not comply with these obligations. At European level, the European Court of Human Rights has recognised in a succession of cases that the right to strike is implicit in the right to form and join trade unions, protected by Article 11.1 of the convention. The other instrument of the Council of Europe, the European Social Charter 1961, is more specific and provides in Article 6.4 that the contracting parties recognise “the right of workers and employers to collective action in cases of conflicts, including the right to strike”. Not only is the right to strike incidental to freedom of association but it is a necessary corollary of the right to bargain collectively. Without power to withdraw their labour collectively, workers have no leverage against the much greater power of employers to set the wages, hours, and terms and conditions under which they labour. The point was elegantly stated by the Supreme Court of Canada in the Saskatchewan Federation of Labour case in 2015: “The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction”. Finally, in this survey, it is to be noted that the EU-UK Trade and Cooperation Agreement 2022 provides in Article 399 that: “Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.