Prof Keith Ewing, IER President and John Hendy QC, IER Chairman

15 September 2011

Across the globe unions are organising resistance to what is an almost uniform governmental response to the current crisis of capitalism.

States have drained their coffers to bail out the financial gamblers and are now taking the opportunity to slash public services and cut the wages, pensions and job security of their employees.

Working people in both the private and public sectors are suffering and are increasingly angry and unions have organised mass protest around the world.

On September 6 Italy was at a standstill in the face of a general strike. On September 8 public-sector unions in Australia organised a "day of chaos."

In Britain too the unions have responded, with 500,000 trade unionists joining the TUC March for the Alternative in London on March 26 to oppose the government's austerity measures, and on July 30 the public-sector unions organised a widely supported strike over changes to their pensions.

What is noticeable is that while unions in other countries have called strikes over the whole package of austerity measures inflicted by their governments, in Britain the strikes have been limited to the terms and conditions of employment of public employees.

This is because it is generally considered that it would be unlawful to call a protest strike against government policy more generally, so days of action in Britain are called on a non-working day.

In a paper to be published by the Institute of Employment Rights after Congress, we argue that this legal analysis is mistaken.

True enough, the limitations on industrial action - ballots, notices, limitation to disputes between workers and their own employer and only about terms and conditions - are clear under the Trade Union and Labour Relations Consolidation Act 1992.

But because of the Human Rights Act 1998, the courts must now give effect to rulings of the European Court of Human Rights, which supervises the European Convention on Human Rights.

Article 11 of the convention guarantees freedom of assembly and association and specifies the right to be a member of a trade union for the protection of one's interests.

The European Court has held in a number of cases that states must allow peaceful protests and strikes protesting against government policy, except where it is "necessary in a democratic society" to restrict or prevent them.

In the light of the European Court's judgements on what is and is not necessary in a democratic society to warrant the restriction of these fundamental rights, we argue that it would be impossible to show that it is necessary in a democratic society to grant an injunction to ban a national day of action called by the TUC against the government's austerity package.

Other governments have run that argument in the European Court and failed, and many cases decided by the International Labour Organisation - to which the European Court pays considerable attention - have come to the same conclusion.

The problem would be to convince our courts to come to a conclusion which might be judicially distasteful and certainly would cut across previous precedent, in particular the case of Express Newspapers Ltd v Keys in which an injunction was granted against a print union calling a TUC-organised day of action on May 14 1980.

But the legal landscape has been dramatically changed by the Human Rights Act and the European Convention, which is of course why the Tories are keen to be rid of the constraints of both.

We put forward a number of legal arguments which the British courts could adopt in order to make British law conform to international treaty law.

The courts could hold that such a strike does not breach but merely suspends contracts of employment so that it is not unlawful to call the strike or they could hold that exercising convention rights is a justification for any such unlawfulness or they could reinterpret the 1992 Act to permit such a strike.

Even if all those arguments failed it would be open to the court to make a declaration that British law is incompatible with convention law which would mean that Parliament would have to re-legislate.

If nothing worked, then the unions could take the case to the European Court - following a number of challenges mounted by British unions in recent times to various aspects of strike law.

Of course all this legal argument would take time and money, and could not be finally decided before the day of action took place.

But given the extent of the demand at Congress this week for a further strong response to the government's onslaught on the working class, we think it important that the possibility of a day of action on a working day is retained in the TUC arsenal.

As lawyers we are of course not advocating this course of action, which would involve many non-legal considerations, many of which might point against it.

But delegates and officers should feel free to discuss all possible options in considering how to follow up on the TUC's triumph of March 26.

Professor Keith Ewing is president of the Institute of Employment Rights and John Hendy QC is chairman.

Click here For more information about the new IER publication 'Days Of Action: The legality of protest strikes against government cuts'