These things take time

The government wants the law to break the RMT strike. It won’t work, argues David Renton

Faced with the prospect of strikes by rail workers, firefighters, doctors, post workers and British Telecom engineers, the government is retreating back into its 1980s comfort zone. It is promising its supporters that it will change the law to make effective strikes unlawful.

At the core of its proposals is a plan to change the law by requiring public servants who strike to have first negotiated a minimum service agreement with their employer under which a proportion of services would continue to run during any strike. So that, for example, rail unions would not be permitted to strike unless they had agreed in advance that in any strike half or more of the trains would continue to run.

That Bill has not been written, nor was it in the Queen’s speech, nor has the government gone further than a promise to consult on the measure. Any legislation could not come into effect for several years. It would have to take the form of primary legislation, since there is presently in our statute law a rule that no court may make an order requiring a worker to carry out their normal duties during a strike.

In taking the threat seriously, which they should, unions will be forced to enter the twilight zone of Boris Johnson’s government under which new laws are continuously announced only to vanish before their first reading. Or where bills are introduced in the Commons only to get stuck without royal assent and remain on ministers’ ‘to do’ list a year afterwards.

The most relevant example of a legislative proposal dying on Johnson’s watch was the employment bill promised in the December 2019 Queen’s Speech which would “enhance workers’ rights, supporting flexible working, extending unpaid carers’ entitlement to leave and ensure workers keep their hard-earned tips.” Two years later, and without the fanfare which accompanied the government’s promise to legislate, that Bill was dropped.

It is a revealing sign of the government’s priorities that it will ignore its own promises to introduce reforms to extend flexible working, granting leave for neonatal and other carers but promises to act urgently to stop a strike which the public supports.

For all the Prime Minister’s promises that he is just about to start getting on with his job, the high of promised self-discipline is always followed by a low. In Parliament, time is rationed, dissipated by both Johnson’s notorious indifference to detail, and his anxious struggle against facing the consequences of his breaches of the Covid rules.

There are other things which the government can do without needing Parliament’s approval. The Conservatives say that they will allow employers to hire agency workers to act as strike-breakers. Here, the difficulty is seeing how that measure could help the government with its plans to defeat the strike. The agencies do not want to be used as strike-breakers.

I have represented rail workers after they have been dismissed. It is a constant refrain of the rail employers that the industry is alone in Britain, in that to a greater extent than any other industry it is bound by complex rules, not of their own making. And therefore decisions which to anyone else would seem bizarre, as when workers in non-safety roles are dismissed for a single instance of consuming any alcohol at all, are proportionate.

The idea that at a time of labour shortage you could take low-paid, untrained, agency workers and use them in place of the RMT’s membership of skilled and experienced signal-box workers and track maintenance staff is a joke.

The Conservatives have also dug up an old rule that where a union goes on strike, and is found to have broken the law, an award of damages can be made against the union. They threaten to extend the maximum award from £250,000 to £1 million. No-one has been consulted on this change; no employer has demanded it. But the rule is in secondary legislation, so that ministers can change it without needing Parliament’s approval.

This change, too, however is unlikely to alter the balance of power between a union whose members voted by 89 percent to strike, and the government. Searching through the law records, I have not been able to find a single instance of a court, anywhere in Britain, making any such award for 30 years.

The reason why is simple. Ever since the anti-union laws were introduced by the Thatcher government in the mid-1980s, the main way in which employers have enforced them is by asking the courts to intervene early and grant an injunction against an unlawful strike.

The injunction is a much more powerful threat than damages since it prevents any strike from taking place. Where it is obtained, there is no strike and the employer has suffered no damage. For the government’s cunning plan to take effect, an employer would need to know that a strike was illegal, then allow it to happen (with all the risk that would represent to its turnover and reputation) and only then sue. Saying that the employer’s damages in those situations might be as much as £1 million is an insufficient incentive.

All this pretence of legislation will, in other words, leave the government more or less exactly where it began: short of ideas in opposition to a strike that deserves to win.

David Renton is a barrister. His book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, is published by Repeater on 12 July.

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