Do we have the right to strike?

Date 13.11.2015

​James Ressel, Senior Lecturer at the University of Northampton, claims that it’s a basic human right.​

“According to press reports, the next 24-hour London tube strike at the end of August would result in social chaos and economic mayhem. Tourists would be delayed in getting to see Buckingham Palace and no doubt many people travelling to work would have been inconvenienced, despite the electronic de-materialisation of much administrative and office work. The striking workers lose a day’s pay and risk breaching terms of their employment contracts.

We are told that the economic cost of a tube strike is immense. For instance, the Federation of Small Business estimated the economic costs of the 9 July strike at £300m; others offer less exaggerated estimates in the range of £10m, but the methodology of the calculation of the cost is rarely publicly disclosed.

Right-leaning politicians of the individualist market bent will no doubt call for introduction of laws to prevent strikes and the liberal end of the political spectrum will be embarrassed into silent acquiescence justified by the need to promote thus far invisible economic recovery in age of austerity illustrated by stories of heroic commuter survival in face of immense adversity.

The above reasonably describes the kind of legal and political violence generated by a strike and expresses the politico-juridical force intended to secure a particular result in favour of those who object to the idea of a right to strike.

However, if we remind ourselves of what Chaim Perelman, the legal philosopher and author of The New Rhetoric: A Treatise on Argumentation (1958 trans., 1969), meant when he wrote that “One can indeed try to obtain a particular result either by the use of violence or by speech aimed at securing the adherence of minds…The use of argumentation implies that one has renounced resorting to force alone, that value is attached to gaining the adherence of one’s interlocutor by means of reasoned persuasion, and that one is not regarding him as an object, but appealing to his free judgement. Recourse to argumentation assumes the establishment of a community of minds, which, while it lasts, excludes the use of violence.”

We may realise that the resort to bare force and the deliberate surrender of process of argumentation suggests that the “community of minds” has failed to be established with the consequence that politico-juridical violence is soon to manifest itself.

In this instance, the value attached to “the adherence to the interlocutor”, which, according to Perelman, would preclude violence, is in fact the human right to strike. The ideal of human right is a key theme in the notion of the rule of law underpinning democratic legality.  Therefore the acknowledgement of the right to strike as a human right, would not only affirm our dedication to the rule of law, but also defeat social violence creating in its place a “community of minds” recognising the strike as part of social dialogue negotiating the changing relationships of interests between citizens fairly and reasonably.

So we need next to ask whether the right to strike is in fact a human right? The short answer is yes. This is because of the numerous legal texts confirming the right to strike as a human right include the International Labour Organisation 1948 Convention on the Right to Organise and Bargain Collectively, the Council of Europe Social Charter of 1961 and UN International Covenant on Economic, Social and Cultural Rights from 1966.

Furthermore, and most significantly, Article 11 of the European Convention on Human Rights states that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”  The right to union membership includes the right to withdraw labour in pursuit of a legitimate employment dispute. In the context of the London Underground strikes the dispute centres on the proposed changes in terms of employment claimed by the employer as necessary to bring in the all-night underground service.

However, the right to strike is not just a creature of international treaty law but forms a key element of English common law in its interpretation of the European Convention on Human Rights as a consequence of the decision inBritish Airways Plc v Unite the Union [2010] EWCA Civ 669.

In this case the Supreme Court considered the scope of the Article 11 rights; the majority of the Court decided that the right to free assembly (and by implication the right to strike) can only be restricted in very limited circumstances. The ‘very li​​​mited circumstances’ would be such as where the right to strike impinges on “the rights and freedoms of other”.

Commenting on the decision on the UK Human Rights Blog, Adam Wagner wrote that “This delicate balancing act – the rights of workers to use their collective bargaining power, versus the rights of businesses to not be held to ransom – has informed the British Airways v Unite dispute at every stage.”

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Therefore we can conclude that the right to strike is not only a human right, but a recognised feature of our common law in balancing the rights and freedoms of competing social actors and as such, I would argue, a key concept in our notion of rule of law helping to create Perelman’s ‘community of minds’ keeping our society peaceful, free of violence and harmonious.”