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‘Laws to Outlaw Strikes Could be this Government’s Most Democratically Illiberal and Economically Damaging Act’

To diminish essential workers’ right to withdraw their labour would be a dangerous precedent and remove an important check on government excess, writes Gareth Roberts

RMT Union General Secretary Mick Lynch joins the picket line outside Euston Station in December 2022. Photo: Zuma Press/Alamy

Laws to Outlaw Strikes Could be this Government’s Most Democratically Illiberal and Economically Damaging Act

To diminish essential workers’ right to withdraw their labour would be a dangerous precedent and remove an important check on government excess, writes Gareth Roberts

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This winter will see the biggest wave of industrial unrest and potential strike action since 1989. Nurses, rail workers, postal workers and civil servants have all voted to down tools after talks about pay reached a deadlock, with others – particularly in the public sector – demonstrating similar levels of discontent.   

This Christmas of unrest comes on the back of an Autumn which saw a decade-high number of days lost due to industrial action. 

The political backlash from the Government has been predictable. The trade unions have been painted as extremists and there have been calls for legislation to make it impossible for those workers who are deemed ‘essential’ to withdraw their labour and to increase the number of those eligible to vote in any strike ballot from 40% to 50% of members for such a ballot to be legitimate. 

The suggestion from some is that the Government already has legislation in place – with Liz Truss saying during her Conservative leadership campaign bid that she would introduce such laws within the first 30 days of her premiership – something, of course, that failed to materialise. 

In fact, the Queen’s Speech of 2019, which included an as yet unintroduced Employment Bill, envisaged a piece of legislation that would deal with zero-hours contracts rather than undermine the right to strike. Meanwhile, existing legislation gives the Government the ability to redefine what is meant by an ‘essential’ worker. It doesn’t, however, allow for wholesale changes to the process by which industrial action is lawful.  As such, any change in the law to curtail the right to strike would almost certainly require primary legislation. 

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The laws in relation to strike action are already onerous – the days when a shop steward could declare ‘everyone out’ and create an immediate picket line are long gone.

The Trade Union and Labour Relations Act of 1992 sets out the process that must be followed. It states that, for essential workers (currently defined as firefighters, health workers, transport workers, those teaching under-17s and those employed in the decommissioning of nuclear power plants), industrial action is only lawful if there has been a properly constituted postal ballot conducted by an independently-qualified scrutineer, in which 40% of all members entitled to vote answered in the affirmative. 

Running a strike ballot isn’t cheap, straightforward or desirable for unions. Despite the claims of right-wing commentators, most people don’t want to strike – especially those who are employed in the public sector where the vocational calling to fulfil an important service is often a significant factor in taking up that profession in the first place.

The Conservative right cites two arguments in favour of kerbing the powers of workers to strike. First, they argue that if the government gives in and rewards above-inflation pay rises, then this will cause inflation to continue to rise. Second, that as the economy is now in recession, the impact of withdrawing labour in essential industries may reduce the country’s ability to create economic growth. 

The flaw in these arguments is that if, during a cost of living crisis, people are made poorer because their wages have fallen behind the rate of inflation, then the impact on economic growth is likely to be catastrophic and any recession will be deeper and longer. 

Indeed, many economists – including the eminent former member of the Bank of England’s Monetary Policy Committee, Charles Godhart – have suggested that, for the good of the economy and to stem inflation, the Government should sit down with the trade unions and negotiate in a proper and realistic way. In a recession like this, he says, “the unions hold all the cards”. 

The political instinct of this Government, however, is to try to paint the unions and their political wing – the Labour Party – as the enemy within. This is why the Tory right is clamouring for red meat legislation to outlaw the ability to strike.

It may appeal to certain sections of the media and the Conservative backbenches but the reality of their desperate desire to create this narrative may see the introduction of legislation that is profoundly democratically illiberal and economically illiterate. 

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The right to withdraw our labour is a freedom which we all, to an extent, enjoy. To diminish that right for those employed in certain jobs that are deemed ‘essential’ would be a dangerous precedent that would remove an important check on government excess.

If our government, for instance, was attempting to implement policies that were anti-democratic or contrary to the interests of the nation, then the right of state employees to withdraw their labour and, by definition, their support for their state employers, becomes an important tool of opposition. 

The practical implications of such legislation could well be that sectors of our economy and society deemed ‘essential’ will be woefully short of a competent workforce as potential recruits are put off by the fact that they would have no recourse to industrial action if they deemed that the pay reward for their efforts was inadequate.

The obvious remedy to this would be to have automatic incremental pay increases set in a contract of employment so ‘essential’ industries can recruit enough manpower – which, some might say, would leave the trade unions having the last laugh.  

In the 1970s, industrial action was described by fledgling Thatcherites as the ‘British disease’. Today, it is not the trade unions who are spreading illness throughout our economy, it is the inability of our Government to engage in dialogue with the unions and recognise the fact that, if people legitimately believe that they aren’t being paid properly and fairly for their efforts, then they have every right to strike. And that, actually, fair pay for an individual’s labour is economically and socially desirable.

Gareth Roberts is a barrister

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