As the TUC opens its discussion for 2012, this IER Briefing from Keith Ewing and John Hendy argues that increased protest action against government austerity measures are defendable in Court with reference to the European Convention on Human Rights.

The POA resolution for the TUC in Brighton next week boldly calls upon the trade union movement to ‘continue leading from the front against this uncaring government’, proposing ‘a coalition of resistance taking coordinated action where possible with far reaching campaigns including the consideration and practicalities of a general strike’.

Unlike their counterparts in other EU member states, British trade unions have so far avoided the general strike in response to governmental austerity measures, preferring instead large-scale demonstrations that have succeeded in bringing hundreds of thousands of workers onto the streets in protest. These have taken place at the weekend, minimizing disruption to the economy and public services.

But what if trade unions decide to step up a gear? One of the practicalities to which the POA resolution refers will be the tight legal restrictions on the right to strike that operate in this country. Even when British law was at its most ‘liberal’ in terms of the right to strike, there were always question marks about the use of the strike as a weapon of political protest.

So in 1980 when the TUC organized a ‘Day of Action’ against the then Tory government’s Employment Bill, a number of newspaper proprietors were able to rush off to the courts to secure an injunction to have the action stopped. It is unnecessary to dwell on the irony of employers whose business is based on the right to freedom of expression denying the same right to the workers they employ.

In those days, industrial action to protest against government policy was unlawful because then – as now – strikes could only take place in furtherance of a ‘trade dispute’. That is to say a dispute between workers and employers over workplace matters, rather than a dispute between workers and government over government policy. The definition of a trade dispute is now even narrower than it was then.

It might be thought as a result that the law presents an insuperable practical hurdle to the type of action contemplated by the POA. If anything the position is even worse than it was in 1980, after over 30 years of even tighter controls on the right to strike – with notices and ballots imposing additional – and sometimes impossible – burdens on trade unions.

But the position is changing. The United Kingdom is a party to an international treaty on freedom of association, referred to by lawyers as ILO Convention 87. This treaty has been said by both the judicial and non-judicial bodies responsible for its supervision to include the right to strike, including the right to strike in protest at policies of government which damage the social and economic interests of workers.

These are very important principles, in view of recent decisions of the European Court of Human Rights, in which the Court has accepted that the right to strike must now be regarded as protected by European Convention on Human Rights (ECHR). By Article 11, the latter Convention protects the right to freedom of association, including the right to form and join trade unions.

The connection between ILO Convention 87 and the ECHR, Article 11 is this. In interpreting what Article 11 of the ECHR encompasses, the European Court of Human Rights has emphasised the need to have regard to ILO Conventions and other relevant international treaties and the decisions of their supervisory bodies.

So we have an obligation under the ECHR to protect the right to strike, an obligation which, under the Human Rights Act 1998 is enforceable and must be applied in the domestic courts.

The implications of this were acknowledged in a recent decision of the Court of Appeal of monumental significance. Although the common law recognises no right to strike, it was acknowledged by one of the judges that ‘there are various international instruments that do’, citing not only ILO Conventions but also the Council of Europe’s Social Charter which the United Kingdom has also ratified.

As the court also recognized in the same case in which the RMT overturned an injunction granted by the High Court, ‘the ECHR has in a number of cases confirmed that the right to strike is conferred as an element of the right to freedom of association conferred by Article 11(1) of the European Convention on Human Rights which in turn is given effect by the Human Rights Act’. Game on, as they say.

It is our contention that the right of workers to strike as a form of political protest is protected by the ECHR and as a result the Human Rights Act 1998 must protect it in UK law. Faced with an application for an injunction by an employer to stop any such action, our courts would be bound by the Human Rights Act to interpret UK law consistently with the (ILO and ECHR) Convention rights of British workers.

It is also our contention that it would be possible to interpret domestic law consistently with Convention rights to out-flank the current statutory restrictions on trade union freedom. But even if our courts felt unable to go so far, it is difficult to see how they could avoid making a declaration that the existing restrictions are incompatible with Convention rights.

That would then found the basis for an inevitable application by British trade unions to the European Court of Human Rights, asking that court to guarantee for British workers the rights it has already declared for Turkish and Russian workers, where trade unions are also subject to swingeing restraints. Either way, there is now an opportunity for trade unions to reclaim their rights by legal action.

Returning to the bold resolution of the POA, there will of course be practicalities to be addressed if British workers are to follow the recent example of their counterparts in Greece, Spain and Portugal. But trade unions ought not to be intimidated by the fear of legal action, given the direction of travel from ILO Convention 87, to the ECHR, to the Human Rights Act 1998.

K D Ewing and John Hendy QC, respectively President and Chair of the Institute of Employment Rights. The argument in this article is developed more fully in K D Ewing and John Hendy QC, Days of Action – The Legality of Protest Strikes Against Government Cuts (Institute of Employment Rights, 2012) (58 pp).