Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

Moved by

[Lord Hendy]

238: After Clause 64, insert the following new Clause—
“Right to take industrial action(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) After section 219, insert—“219A Right to strikeEvery worker shall have the right to take industrial action, whether or not in breach of any contract, subject to the provisions of this Part.””Member’s explanatory statement
This amendment would establish a clear positive right to strike (and take action short of a strike).

[Lord Hendy (Lab)]

My Lords, it is a bit daunting, at 9.50 pm, to speak to a series of amendments relating to the right to strike. I thank my noble friend the Minister for taking time out of her very busy schedule to discuss these amendments, and amendments on collective bargaining, with me last week. The meeting was very amicable and very constructive, but Members opposite will no doubt be pleased to learn that she yielded not an inch on these amendments. None the less, I think it worth while to advance them.

Amendment 238 is intended to confer a positive right to strike. Striking and other forms of industrial action constituted a criminal offence until 1875 and were subject to civil liability until the Trade Disputes Act 1906. Since then, the law has undergone various evolutions, until the Conservative Governments passed a series of Acts in the 1980s, consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992, which severely restricted industrial action.

Subject to those restrictions, the Court of Appeal in Metrobus v Unite in 2009 held:

“In this country, the right to strike has never been much more than a slogan or a legal metaphor. Such a right has not been bestowed by statute. What has happened is that, since the Trade Disputes Act 1906, legislation has provided limited immunities from liability in tort. At times the immunities have been widened, at other times they have been narrowed. Outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract on the part of the strikers and the economic torts as regards the organisers and their union”.


As the Court of Appeal put it in RMT v Serco Ltd in 2011:

“The legislation therefore secures a freedom rather than conferring a right as such”.


Both judgments noted that the European convention and other international laws ratified by the UK protected the right to strike, but that was held to be insufficient to establish such a right in UK law. So there is no positive right to strike in the UK, merely a freedom to take industrial action, protection from what would otherwise be unlawful. My amendment proposes that we should have such a right. In making that case, I do not suggest that such a right should be free of limitations. If this amendment were adopted, the current statutory restrictions on its exercise would remain.

The international treaty obligations by which the UK has elected to be bound support the case for my amendment. The UK ratified ILO Convention 87 on freedom of association and protection of the right to organise on 27 June 1949. The ILO, of course, is a tripartite body representing Governments, employers and workers of virtually every country in the world. Though Convention 87 does not expressly mention the right to strike, since the 1950s the relevant supervisory committees of the ILO have held repeatedly that it does so implicitly. For decades, member states have acknowledged that jurisprudence. For example, the UK Government have argued in the ILO:

“The right to strike, which, although not expressly laid down in Convention No. 87, was implied by the provision there for the right freely to organise activities”.


Independently of Convention 87, the ILO recognises the right to strike. A joint statement issued by the employers’ group, workers’ group and governmental groups in 2015 affirmed that:

“The right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation”.


I turn to other international treaties ratified by the United Kingdom. The UN Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect freedom of association and the right to be a union member. In 2017, the UN special rapporteur on freedom of association stated:

“The right to strike is also an intrinsic corollary of the fundamental right of freedom of association. It is crucial for millions of women and men around the world to assert collectively their rights in the workplace, including the right to just and favourable conditions of work, and to work in dignity and without fear of intimidation and persecution”.


Article 8.1(d) of the International Covenant on Economic, Social and Cultural Rights explicitly requires

“States Parties … to ensure … The right to strike”.


In 2019, the supervisory bodies responsible for the two covenants I have just mentioned—respectively the Committee on Economic, Social and Cultural Rights and the Human Rights Committee—issued a joint statement on the basic principles of freedom of association common to both covenants, stating,

“the right to strike is the corollary to the effective exercise of the freedom to form and join trade unions”.

In 1997, the Committee on Economic, Social and Cultural Rights addressed in relation to the United Kingdom the very issue raised by this amendment, holding that:

“The Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike”.


This led the committee to recommend that the right to strike be established in UK legislation because

“the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of article 8 of the Covenant”.

In 2002, the committee reiterated its concern that

“failure to incorporate the right to strike in domestic law constitutes a breach of article 8 of the Covenant”,

and repeated its recommendation that the right to strike be incorporated in UK legislation. It cannot be acceptable that the UK will not comply with these obligations.

At European level, the European Court of Human Rights has recognised in a succession of cases that the right to strike is implicit in the right to form and join trade unions, protected by Article 11.1 of the convention. The other instrument of the Council of Europe, the European Social Charter 1961, is more specific and provides in Article 6.4 that the contracting parties recognise

“the right of workers and employers to collective action in cases of conflicts, including the right to strike”.

Not only is the right to strike incidental to freedom of association but it is a necessary corollary of the right to bargain collectively. Without power to withdraw their labour collectively, workers have no leverage against the much greater power of employers to set the wages, hours, and terms and conditions under which they labour.

The point was elegantly stated by the Supreme Court of Canada in the Saskatchewan Federation of Labour case in 2015:

“The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction”.


Finally, in this survey, it is to be noted that the EU-UK Trade and Cooperation Agreement 2022 provides in Article 399 that:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.

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[Lord Hendy (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her support and her economic analysis of the consequences of the absence of the effective right to strike. I am grateful to the noble Baroness, Lady Fox of Buckley. I am not sure I quite understood her question, but I am not trying to ring-fence an artificial, theoretical right. This amendment has purpose. I recognise the realities of the political situation in which we are arguing, but this right, were it to come about, would have practical, real consequences and continue what she described as the fight in real life.

The purpose of these international laws, of course, is to lay down minimum fundamental standards for the entire globe. Although some of them are quite ancient, dating to just after the Second World War, and while I accept that capitalism and the world of work have evolved, the fundamental nature of the entitlement to freedom of association, the right to bargain collectively and the right to strike remains, and it is very important that we keep an eye on these international standards and the modern interpretation of them by the bodies which are charged constitutionally to interpret them.

I am grateful to the noble Lord, Lord Goddard, for what I discerned was his support, in a way, at least for the principle. This is my fault entirely, but I was moving Amendment 238 only. I am afraid that he has the further ordeal of listening to me again for the range of further right to strike amendments, including that in relation to prison officers.

I am grateful to the noble Lord, Lord Sharpe, for his thorough response to my arguments. He can use the phrase “constitutional benediction”, but it is better coming from the Chief Justice of the Supreme Court of Canada. I will not take up time dealing with all his arguments; the differences between us are self-evident. I just point out that a positive right to strike exists in virtually every country in Europe, and they do not have a difficulty with issues of breach of contract. Of course, the restrictions on the exercise of the right to strike differ from one country to another, but the positive right exists almost everywhere.

Finally, I thank my noble friend the Minister for her very full response. She says that a positive right to strike would cut across our constitutional arrangements. I just remind her that Section 220 of the 1992 Act provides a positive right to picket; if we can have a positive right to picket, I do not see why we cannot have a positive right to strike. For the avoidance of doubt, I was not suggesting for a moment an absolute and unqualified right to strike. Everywhere in the world that there is a right to strike, it is always subject to limitations, which differ from country to country. The question that these international bodies wrestle with day in, day out is whether the particular limitation is in conformity with whatever the international treaty is.

My noble friend asserts that we are in compliance with international law on this. We have to agree to disagree on that point. I do not believe that to be the case. Of course, I agree with her that this Bill is a great improvement on the law as it is at the moment, but she knows that my view is that it is not quite enough. With that, I beg leave to withdraw the amendment.

Amendment 238 withdrawn.

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Moved by

[Lord Hendy]

239: After Clause 64, insert the following new Clause—
“Right to take industrial action (No. 2)(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) Omit section 223 (action taken because of dismissal for taking unofficial action).”Member’s explanatory statement
These amendments would remove section 223 of the 1992 Act which renders industrial action unlawful if one of the reasons for the industrial action is that the employer has dismissed one or more workers for taking unofficial industrial action.

[Lord Hendy (Lab)]

My Lords, it is now 10.22 pm, so I apologise for assaulting your Lordships’ ears with a series of amendments which also deal with the right to strike. Since time is precious, I have decided to focus on one amendment in particular and let the rest speak for themselves. I had hoped that my noble friend Lord Woodley would speak to his amendment on prison officers, but he is unavoidably not in his place. I will deal with that amendment when I get to it.

I will focus on Amendment 240, which introduces six specific measures aimed at the restoration of statutory protection for secondary action. Again, I do not entertain a great deal of hope for this amendment—I am a realist—but I express my gratitude for the support of the noble Baroness, Lady Jones of Moulsecoomb, who has added her name to it; for a briefing from the British Medical Association; and for the support of unions, including ASLEF, the BMA, the Bakers, Food and Allied Workers Union, the Fire Brigades Union, the RMT and the University and College Union.

Solidarity action is an inherent aspect of freedom of association and the right of workers to act for and on behalf of fellow workers, particularly fellow trade unionists. From 1906 to 1982, there was no legal distinction between solidarity action and other industrial action. The Conservative Government then introduced restrictions on certain kinds of secondary action, and in 1990 all statutory protection was withdrawn. The Labour Party strongly objected. In the parliamentary debates on the 1990 Bill, Tony Blair, then shadow Employment Minister, said in the other place:

“The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else”.


In relation to the proposal that all forms of sympathy and secondary action were to be forbidden, he said:

“That proposition is so manifestly unfair and unreasonable … that it is fatal to any pretence of even-handedness in the Bill”.


Compliance with international law is a duty incumbent on the state. Lord Bingham’s eighth principle of the rule of law is the obligation of the state and Ministers to comply with their international treaty obligations. In this House, last November, the noble and learned Lord the Attorney-General said of compliance with international law that:

“We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations”.—[Official Report, 26/11/24; col. 680.]


He developed the theme in a lecture to the Royal United Service Institute on 29 May this year in which he rejected “cherry picking” among international obligations. He continued,

“The argument … that the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law … states can leave the treaties they have signed and agreed on. But the integrity and force of the system requires that once a party, to an agreement, they abide by its rules — they don’t pick and mix”.


It will be recalled that the Labour Party in 2021 adopted a Green Paper, Labour’s New Deal for Working People. It was integrated into Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People. It was explicitly referred to in the election manifesto and in the King’s Speech. The paper said:

“The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organization and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union”.


The UK has ratified ILO Convention 87, which protects the right to strike. Since 1989, the ILO committee of expert jurists has reviewed the UK’s legislative restrictions on secondary action and held them in violation of ILO Convention 87. The committee held that secondary action should be permitted in three situations. First, where it relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves. Secondly, in any event, a general prohibition of sympathy strikes could lead to abuse, and workers should be able to take such action, provided the initial strike they are supporting is itself lawful. And thirdly, furthermore, the restriction to disputes only between workers and their own employer

“could make it impossible for unions to take effective action in situations where the ‘real’ employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the ‘employer’ of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute”.

That condemnation in 1989 has been repeated many times in the Committee of Experts’ observations on the United Kingdom, including in 1995, 1999, 2001, 2003, 2007, 2009, 2011 and 2013.

The other ILO committee, the tripartite Committee on Freedom of Association, has also condemned the UK in this regard, holding that:

“a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association, the Committee once again requests the Government to take the necessary measures to ensure that sympathy strikes, as well as social and economic protest action, are protected under the law”.

In November 2023, that committee reviewed the P&O Ferries scandal, and among other things, held that:

“At the outset, the Committee recalls that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful … The Committee recalls that it had previously requested the UK Government to take the necessary measures to ensure that sympathy strikes were protected under the law … The Committee requests the Government to engage with the social partners to overcome challenges regarding the legislative prohibition on sympathy strikes, in conformity with freedom of association”.


The request was ignored.

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The Prison Service and the POA have developed a strong working relationship in recent years, and it is the Government’s hope that this position continues going forward. I can tell my noble friend Lady O’Grady that we continue to work with both sides, and we hope to find a more substantial way forward on these issues. With this in mind, I ask my noble friend Lord Hendy to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for her support, her attention to Amendments 239 and 241, and her economic analysis of inequality in the role of trade unions. I thank my noble friend Lady O’Grady for developing that by explaining that the purpose of these amendments is to restore the balance of power somewhat.

I also thank her for dealing with Amendment 253 on prison officers. I feel somewhat guilty that I did not give due time to that subject in my speech. However, I note the additional point that prison officers in Scotland have the right to strike. It seems inexplicable to me that those in England, Wales and Northern Ireland are deprived of it while those in Scotland enjoy it.

I thank the noble Baroness, Lady Coffey, for her contribution. She did not deal with the requirements of international law; instead, she put forward a case that we have heard before, which in essence is that of special pleading that the circumstances of the United Kingdom justify non-compliance with international law. I do not think that that argument is capable of success.

The noble Lord, Lord Jackson, rather misunderstands the position of international law and the theory of dualist and monist regimes. The United Kingdom is a dualist regime. That means that the obligation of international law falls not on the citizens, corporations, trade unions or other bodies in the United Kingdom but on the state itself. The obligation to comply with international law is that of the state, not of the citizens within it.

The noble Lord mentioned the European Convention. That is somewhat different, because Parliament has made most of the European Convention part of UK law itself. That is a different thing altogether. I am not arguing that the provisions in international law that I have explained apply directly in the United Kingdom or in UK courts or tribunals. The obligations are on the state to conform to those obligations which it has ratified.

The noble Lord, Lord Hunt, regards these measures as a dangerous and retrograde step and regards the current regime over the last 40 years or so as being very successful. On the contrary, I am with the noble Baroness, Lady Jones of Moulsecoomb, in regarding the legislation of 1980s as having led to powerlessness, poverty, inequality, insecurity of work and insecurity of earnings. I disagree with his analysis, in which he describes the consequences of some mythical fantasy world of his own imagination. I say just this about the 1970s, as we do not have time to go into it: for all its faults, it was the most equal decade in British history for wealth and income. The consequence of the 1980s legislation has been to reduce collective bargaining coverage from over 80% to something like a quarter today, which is the essential cause of inequality and poverty.

Finally, I thank my noble friend the Minister for her attentive and detailed response. Again, we must agree to differ in our conclusions, but I add that we cannot go on being damned year after year by these international supervisory bodies. There has to be some way of resolving Britain’s non-compliance. With that, I beg leave to withdraw the amendment.

Amendment 239 withdrawn.