How lawful is a General Strike?


 

Perhaps the most poignant moment of the recent #Oct20 under-reported anti-austerity protest came when Unite’s Len McCluskey asked those present at the Hyde Park rally for a show of hands in support of a general strike. The resulting sea of raised hands was testament to the general ill feeling towards the government’s cuts agenda, a feeling perfectly illustrated by the RMT’s official slogan for the day: “March today, strike tomorrow!”

October-20-marchWhile some might label McCluskey’s emotive call to arms as mere posturing, it would be foolish to disregard the resolve of the union movement at this juncture.

The Prison Officers’ Association successfully moved a motion at last month’s Trades Union Congress calling on the TUC to investigate the “practicalities” of holding a general strike. The motion was crucially backed by the UK’s three biggest unions - Unite, Unison and the GMB - plus the ever-influential RMT.

Although ‘general strikes’ are not banned per se (they were for a brief period after the General Strike of 1926), strikes are only lawful when they are called in contemplation or furtherance of a trade dispute. A ‘trade dispute’ has to be between ‘workers and their employer’ and must concern the objects of collective bargaining.

As there is no positive or constitutional right to strike, the organisers of industrial action falling outside this ‘golden formula’ are unlikely to enjoy the statutory immunity from tortious liability (primarily inducing breach of contract).

Unlike the joint public sector walkouts earlier this year, which were organised by holding coordinated strike ballots, a general strike against government cuts would fall wholly outside the ‘golden formula’ as there would be no trade dispute between the workers called out and their employers.

Therefore, on a strict reading of the law, it would appear there isn’t much scope for the TUC or individual unions to call a lawful general strike. However, developments in international labour law and European human rights law may now mean the British courts have to revise their position on political protest strikes if they are to comply with their treaty obligations.

The International Labour Organization has consistently held that strikes of a political nature aimed at seeking solutions to economic and social policy questions fall within the scope of the principle of freedom of association enshrined in ILO Convention 87. Not only has the UK ratified this convention, it is considered to be a Core Convention binding all ILO member states by virtue of membership.

It can therefore be concluded British unions have a public international law right to call protest or general strikes.

This international law right can be ‘brought home’ via the 2008 European Court of Human Rights decision in Demir and Baykara v Turkey. In this case, the Court held (among other things) that in determining the rights covered in Article 11 (Freedom of Association) of the European Convention on Human Rights, deference must be given to ILO conventions and other international legal instruments which, incidentally, also permit political strikes.

The now maligned Human Rights Act 1998, which transposed the ECHR into domestic aw, places an obligation on judges to interpret domestic legislation in line with Convention rights. Therefore, as the authoritative Institute of Employment Rights has suggested, we now technically have a right to strike by virtue of the HRA.

While the UK courts may not be willing to imply the Article 11 right to strike (let alone the right to engage in political protest actions) into domestic law, they may be left with no alternative but to make a declaration of incompatibility with the ECHR. However, it is more likely that another European Court of Human Rights judgment will be needed before the domestic courts start applying our newfound right to strike.

Needless to say, much will depend on the courage of UK union leaders to call a general strike on such complex and indefinite legal grounds (read the brilliant IER report for a thorough analysis of the legal complexities). Not to mention the practical and financial implications of fighting through the legal system all the way to Strasbourg.

That being said, this could be a pivotal moment for the British labour movement. Watch this space…

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  • David Mullen

    I am coming round to the position that unions should not be afraid to break the law. Whenever unions have a lawful ballot, they are required to jump through a number of hoops and can still have the action ruled unlawful on the flimsiest technicality.

  • LB

    Time for the tax payer to get the right to strike.

    e.g. If you object to the war in Afghanistan, you should have the right to withdraw that percentage of spending from your taxes.

    Otherwise its forced Labour.

  • LB

    You can withdraw your labour. You just resign.

  • Selohesra

    What is the point of a General Strike – it will deprive hard up workers of days pay while union leader continue to draw their 6 figure salaries. It won’t improve the economy or allow for less cuts. About all it will achieve is to allow the BBC to bang on about their favourite cuts agenda which they were doing long before any cuts were made and which they continue to do withiout the need for a strike story to hide behind.

  • jimcrowder

    Not very democratic is it? Maybe the TUC should hold a national ballot of all voters to test public opinion on this.

    Should workers who aren’t members of unions have the right to withhold their labour from union members? Can a B&B owner refuse to accept union members?

  • Patrick

    Everybody out, brothers, then it’s off to No. 10 for beer and sandwiches and incomes policies. I bet you socialists get all misty eyed at the thought of Red Robbo and power cuts and rubbish piled up the streets and the dead lying unburied. If you really want to recreate this, I suggest for full authenticity contacting the government of some oppressive left wing regime overseas and seeing if it’s possible to get funding, like the miners did. Oh comrades.

    Incidentally, do you remember when delegates at Labour party conferences used to call each other ‘comrade’ but were told to stop under Blair because it sent out a damaging message?

  • treborc1

    It was those hoops people hoped that labour would remove sadly labour Tory not a lot between them.

    But a general strike would it happen here I really doubt it, you would need all the shops to shut and sadly workers in places like Tesco, Asda are not Unionized these days, large strike maybe general not yet

  • treborc1

    They do that now people who are not members of Unions if a strike happens they carry on working hence the word scab.

  • treborc1

    Yep we do, when it comes to people in government not listening.

  • treborc1

    You will get nearly a wage for a day, last time I was on strike I had strike pay.

  • Newsbot9

    That;s right, you want to lure people into striking so you can fire them,. Typical right wing fanatic, LB.

  • Newsbot9

    Yes, you’re quite welcome to emigrate. That’s your option, right there. Oh wait, you’re already swanning about the world…

  • Newsbot9

    Given this is your government, you are making no sense.

  • Newsbot9

    Nope, that’s your plan. You’re doing very well at causing it, too.

  • Newsbot9

    “Striking” is not “getting a day out on company expenses”, FYI

  • Newsbot9

    Ah yes, how dare the BBC tell the truth. How dare people do something which you disapprove of. How dare union leaders get paid.

    And that’s right, you’ll starve the poor by hook or by your crooks!

  • treborc1

    I think your now close to being a troll, you seem to be following me around the place, but I will accept it because of your know mental health issues, or I will accept it for a little while longer

  • Newsbot9

    Was that a legal or a personal threat?

    The “mental problem” is of course, disagreeing with you…and I don’t think you’ll get far with trying to convince anyone else it’s actionable. Of course, you can either withdraw it or I’ll have to point out that you do this…

  • treborc1

    It’s legal

  • Newsbot9

    How unsurprising!

  • topcat

    have you found that link about global warming making england uninhabitable yet?

    thought not

  • Newsbot9

    I’m not going to help an illiterate troll, no.

  • charles

    There is clearly something wrong with you. You make outrageous claims and can never back them up (england uninhabitable due to climate change?!). Then you start the ‘shill, 1% you are trying to murder the poor etc’. I would say you appear to be mentally ill to some extent, but then you are also a Labour supporter which is the same thing effectively.

  • newton

    out of interest, in how many years was england going to be uninhabitable due to climate change? i cant find it in that link, so please tell.

  • Newsbot9

    I’d suggest examining the archaeological records…

  • Newsbot9

    Of course there’s “somthing wrong” with me, I’m opposing your right wing shilling. I tell the truth. I insist on talking about consequences.

    Of course this is wrong to you, the truth in particular can give you a rash, I understand. You ARE trying to murder the poor, of course, trying to lie about is wrong.

    You’re simply a good social darwinist, maundering the same old Totaltarian line that anyone who disagrees with you is mentally ill.

    I’m a left winger, not a Labourite – but you appear to be unable to differentiate between a binary state of “like me” and “my enemies”. That type of lack of discrimination is downright worrying.

  • newton

    how would the archaeological records help?

  • Newsbot9

    Well, let’s see..the record CO2 generation since Human history began might be a good start…

  • LB

    And likewise for yourself.

    If you don’t like the Tories, you could always leave by that logic.

    However lots can’t. The vast majority can’t. They are locked into the mess caused by all governments.

    Their pension money has been looted. 420,000 pounds for a median wage earner. Left with just 120-130,000 pounds.

    Those nice caring MPs.

  • Newsbot9

    That’s right, you’ve locked and looted them, as a MP.

  • paololucchino

    Excellent explanation of the legal context. Indeed, watch this space…

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