UK government is wrong to argue health workers cannot go on strike

There are many rights in employment and industrial relations law that are not fundamental human rights, but the right to strike has been held by the European Court of Human Rights (ECtHR) to be a fundamental though not an absolute human right.

The UK government’s knee-jerk reaction to the number of strikes in the pipeline, ushered in by the nurses and ambulance workers industrial action, is to legislate to restrict the right to strike. As it is not an absolute but a qualified right the government can restrict it even though the decision to legislate smacks of cynical opportunism and an unnecessary overreaction.

The rationale behind the new legislation is to ensure a minimum service is maintained in key public sector areas such as health, education, fire, ambulance, rail, nuclear commissioning and border control in the public interest.

But the right to strike has huge support in international law which was relied on in two landmark decisions of the ECtHR in 2008-09, cases that held that the qualifying provisions in article 11 of the European Convention on Human Rights (ECHR) were to be strictly interpreted and could not impair the essence of the right of collective bargaining and that a blanket strike ban was too restrictive.

The court extended the reach of the the right to freedom of peaceful assembly and association, including the right to belong to a trade union for the protection of the worker’s interests in article 11 of the ECHR to bring within its grasp the right of collective bargaining and the right to strike as rights protected by the convention.

What enables the court to develop the law so drastically is the principle that the ECHR is a living instrument that sets out fundamental rights, which the court is entitled to adapt to new circumstances concerning the interpretation and application of the convention to ensure observance of the engagements undertaken by the state parties to the convention.

The UK government will no doubt rely on the fact that even if it were to accept that the right to strike is a right protected by the ECHR, it is nevertheless a qualified right that could be restricted if necessary for the protection of life and limb or the rights and freedoms of others.

That is an important qualification in the context of strike action by workers in essential services, but the proposed legislation has to be carefully crafted so that it is demonstrably necessary on account of a pressing social need and proportionate to a lawful aim.

It seems to me from the facts, as I observed them from various news sources, that both the nurses and the ambulance workers did maintain minimum service cover during their single-day strike action and did not expose the public to any danger over and above the danger that exists owing to government neglect of the health service since 2010.

Which brings me to the nub of the matter, which is that the problem is primarily economic and political and only legal to the extent that the economics and politics fail to deliver reasonable policies without strike action. Most workers these days do not vote for strike action lightly like they used to in the days of voting by show of hands and the closed shop in the 1970s.

The problem is economic because of the unprecedented increase in the cost of living last year that showed up in stark form the government’s neglect of pay and conditions in the health service and other public services.

The cost of living crisis affects all public sector workers and the government’s fear is of exorbitant claims across the board but I don’t buy that argument in the case of health workers; most people acknowledge their public spirited performance during the pandemic and accept that theirs is a special case.

There is also the broader point based on the unwritten social contract in society between government and governed which a wise government should always consider. One aspect of the contract is that the state maintains a stable cost of living in line with earnings as part of its duty to provide an economically secure environment, and in exchange the working population and their trade unions maintain industrial peace.

However, when the state fails to keep its side of the bargain and there is an inordinate rise in the cost of living and people are unable to afford the basic necessities of life, a wise government is flexible in the parameters it sets for pay increases, in recognition of its failure to sustain the equilibrium of the social contract.

Wealthy countries such as the UK can easily afford pay increases even across the whole public sector by a combination of tax rises and state borrowing so that the huge increase in the cost of living is shared equitably pending an upturn in the economy and a return to equilibrium.

An unwise unimaginative government ignores the plight of the people and pleads anti trade union platitudes from the 1980s, without thinking that this time round the public supports the workers and their trade unions, which is the path chosen by the government of Rishi Sunak.

Sunak may have been the right man to become prime minister to calm the financial markets down, but he is the wrong man to sort out industrial relations post pandemic and the war in Ukraine. He is unsympathetic to the plight of working people who are struggling against impossible price rises and the sooner he goes the better.

The Marie Antoinette series on BBC iPlayer stopped short of the point in her story where on being told that the people had no bread she is alleged to have said “let them eat cake.” Pity because as the French people say, the more things change the more they remain the same – the UK’s very wealthy prime minister in 2023 is as indifferent to the plight working people as Marie Antoinette was in the late 1700s.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge