The government’s anti-strike laws are illiberal and unworkable

There is no right to strike in British law. Nevertheless, the assumption that everyone has the right to withdraw their labour is widely, deeply and rightly held.

Nor is it a right that is explicitly expressed in the European Convention on Human Rights, which refers only to “the right to form and to join trade unions for the protection of [everyone’s] interests”. But the court that enforces the convention has interpreted this to mean that everyone has the right to strike – with exceptions set out in Article 11.

These exceptions relate to national security and public safety, and include “the protection of the rights and freedoms of others”. It is on this last clause that the UK government makes its case for the Strikes (Minimum Service Levels) Bill. It argues that some industrial action in the public sector interferes so greatly in the rights and freedoms of passengers, patients and pupils that parliament is justified in legislating to require unions to ensure that minimum levels of service are provided during disputes.

This argument is unconvincing, and the government’s motive for the legislation seems largely political. The bill, which is currently awaiting consideration in the House of Lords, will take too long to make it on to the statute book to have an effect on the current wave of strikes in the public services.

Its main function would seem to be as a vehicle for propaganda in the government’s battle with the unions for the support of the public.

So far, although Rishi Sunak obviously hopes to divide public opinion – which supports strikes by nurses and teachers more than those by rail workers – this is a battle that the government is losing. As we reported yesterday, Mr Sunak suffered another reverse when nine of western Europe’s biggest trade union confederations condemned the bill as dragging the UK “further away from democratic norms”.

This is a significant intervention because one of the government’s many superficially plausible arguments for the bill is that other European countries have similar minimum service requirements in law.

The unions point out that the right to strike is protected by constitutional law in all other advanced European democracies, and that minimum service levels are agreed with the unions through collective bargaining structures.

They argue that legislating for minimum service levels in Britain, which already has “the most draconian anti-union laws in the democratic world”, would be quite different.

They are right, but there is a more practical reason why the proposed law is a bad one: it will not work.

If employees and their unions have not willingly agreed to provide minimum services – as the nurses and most other striking workers have done, as it happens – who is going to make them do so?

Are staff going to be sacked for failing to turn up at work if they claim to be sick? The provisions in the bill for unions to be fined for failing to provide minimum services are a charter for wildcat, unofficial action. People will take the law into their own hands.

What is more, we suspect that ministers know that the law will not work, which is why much of the detail about how minimum service levels will be decided and how they will be enforced is not specified on the face of the bill but has been left to ministerial diktat after it becomes law.

Rishi Sunak’s government has a difficult job to do in trying to deal with widespread industrial action. The public purse is stretched and there is limited money available to settle pay disputes. But so far, ministers have done a poor job in rewarding those who appear most deserving, such as nurses, and have failed to negotiate meaningfully in an attempt to stop strikes, which are only growing.

The minimum service bill is a bad attempt to take action. It is bad law, which seeks to take away what the British people conceive of as the fundamental right to withdraw their labour. Just because that right is not written down anywhere does not make it something that can easily be taken away.