On Monday evening I left the Constitution Society offices and made my way amid freezing winter temperatures to Westminster. Along with a couple of thousand other people, I stood rapt opposite Downing Street and listened to speakers in opposition to the Government’s new Strikes (Minimum Service Levels) Bill. I shall return to the contents of the Bill itself shortly, but the large attendance at Monday’s Enough is Enough protest speaks to the wider discontent gripping the nation.
Alongside this Bill, the Government has announced its intention to substantially increase the powers of the police to intervene against protests. This is to be achieved through an amendment to the already controversial Public Order Bill currently at the report stage of its passage through the House of Lords.
Both legislative clampdowns have been portrayed by opponents as an attack on our rights. On the face of it this is an easy case to make, but for those of us concerned specifically with developments in the UK’s constitution, we might do well to look beyond this framing. While it is a useful shorthand for trade unions and civil society, we would do well to reflect on where strikes and protests sit within our constitution and whether we have a de facto ‘right’ to them.
To begin with, neither the right to protest nor the right to strike are explicitly titled in the statutory sense. Instead, they are taken from an amalgamation of the European Convention on Humans Rights’ articles 5, 10 and 11. There are of course older UK-specific origins in Scots and common law. What rights have emerged from this amalgamation, though, are replete with exceptions and limitations.
If laws prohibiting the police and armed services from striking are considered compatible with articles 10 and 11 of the ECHR, then a government minister might convincingly argue that similar laws applied to the fire brigade and the NHS are also compatible. Similarly, the right to protest is already constrained in all manner of ways. Protestors may not legally interfere with the operation of nuclear power stations, for example. The right to free assembly was further restricted during the lockdowns of 2020 and 2021. That same government minister might argue, then, that any amendment of the Public Order Bill will be well within the limitations already existent in ECHR bestowed rights. In truth, we march on treacherous ground if we assume we enjoy absolute freedom to protest or to strike. Beyond this, in both cases we are reliant on protracted legal proceedings to defend these rights.
More theoretical, a compelling argument might also be made that the right to withdraw one’s labour and the right to protest are in essence natural rights. Locke’s conception perhaps didn’t explicitly include strikes and marches, but there’s something to the idea that life and liberty must include the right to dissent and a right to free collective action. In this sense we might be able to appreciate such acts as within our natural rights, but this is of little practical consolation. Nor, in fact, is thinking of these acts in such terms necessarily useful.
By framing protests or striking as rights, one becomes bound up in the politics of the absolute. Either Government legislation is a breach of our rights, or it is not, and within the second category, all manner of infringement and regression may be tolerated. In essence, the argument here is simple one: not all constrictions on our liberty are necessarily a clear violation of our rights, whether statutory or natural, and nor should that affect the extent to which we oppose such constrictions.
The right to strike
While we stood in the cold outside Downing Street on Monday, in the House of Commons the Strikes (Minimum Service Levels) Bill was progressing through its second reading. The Bill is remarkably short at eight pages, and in this regard, it fits in a worrying trend identified by the United Kingdom Constitution Monitoring Group that an increasing amount of legislation confers significant discretionary powers onto ministers.
In this case, and should the Bill pass, the Secretary of State for Business, Energy and Transport may set what are termed ‘minimum services levels’ in public services. In practice this means that the health services, the fire and rescue services, education services, transport services, those dealing with the decommissioning of nuclear installations and the management of radioactive waste and spent fuel, and those involved in border security’s right to strike would be subject to restriction. The Secretary of State might dictate, in an eminently plausible scenario, that 20 percent of trains were required by law to run despite any industrial action.
Throughout the press tour of this Bill, Grant Shapps and fellow ministers have repeatedly used the term ‘minimum safety levels’ when explaining the consequences of this legislation. It must be pointed out, though, that the word ‘safety’ appears nowhere in the Bill. This further increases the Secretary’s discretion on what might constitute a minimum service level as ‘safety’ need not play any role in the decision. When questioned last week, the Government suggested the International Labour Organisation and many countries internationally supported or utilised minimum service levels. This week, at the World Economic Forum in Davos, the president of the ILO and US Labour Secretary Marty Walsh expressed their reservations about such restrictions.
But whatever the political fortunes of Bill, its passage highlights that where the right to strike exists, it is often tenuous and rarely confers a great deal of protection onto workers.
The right to protest
Amendment of the Public Order Bill in the Lords also took place on Monday. The press release from the Prime Minister’s office suggested that the amendment would help limit the ability of protesters to ‘inflict misery on the public’. Fawning quotes from senior police officers mask the remarkable new powers they are to receive. Chief among these, a police force will no longer need wait for any disruption to actually take place before it can shut down a protest. Additionally, the protests of an organisation may be taken cumulatively by the police when judging their response to future actions.
Martha Spurrier, the director of Liberty, argues that ‘allowing the police to shut down protests before any disruption has taken place simply on the off-chance that it might sets a dangerous precedent’. Beyond this, she argues that the proposed powers are a continuation of the Government’s attack on protest, ‘a fundamental right, not a gift from the state’.
It seems certain that legal challenges will follow should the amended Public Order Bill become law. But once again, the extent of any right to protest will be defined by the interpretation of the ECHR by the courts. This is not to suggest such a strategy of opposition will not prove to be effective. Indeed, it is reasonable to argue that the most effective forms of resistance to Government policy over the last five years have been through the courts. One need only think of Miller to be reminded of this. But by framing regressive law making principally as a breach of our rights, we lose some of our ability to criticise damaging or thoughtless constitutional legislation in other terms.
It may be that the Public Order Bill goes too far and that courts come to prevent police interference, but it might also be the case that the Government may make bad and regressive legislation without the courts ruling our rights have been infringed.
Rights and regression
I am wary that the point I am seeking to make here might be considered pedantic. Does it really matter whether our freedoms and liberty are framed as rights or not when they are under attack? Certainly, I’m not suggesting we should abandon a rights framing completely – it is often an effective and emotive way of expressing what we know to be at risk. But beyond this, we should also think about how the UK’s uncodified constitution is being influenced by these measures, regardless of how a court rules on the compatibility of government legislation with Convention rights.
Clearly, even if the Government’s restrictions on protests and industrial action are lawful and no breach of our rights, they would still be restrictions on our ability to organise collectively. By imposing such restrictions, the industrial and political landscape of the UK will have changed. For some hundred years our constitution has had at least some very limited protection for strikes and protests, after this legislation, it will have less.
I argue, then, that should these laws pass, our liberty will have been materially restricted even if the limitations on our rights have only been better defined. This is a necessary distinction to draw because it allows us to conceptualise how the UK constitution has become more restrictive over the last two decades, even amid the increasing prominence of rights discourse.
Whether in anti-terror legislation or the Government’s proposed anti-strike and anti-protest legislation, we find ourselves more closely bound than we did at the beginning of the millennium. Whether or not our rights have been reduced in that time becomes itself academic, and so in seeking to understand our present conditions, we must be able to look to our liberty as existing beyond those rights conferred upon us by the ECHR and defined by the courts. The state can act regressively without breaching our human rights, and so our opposition must not be predicated solely on the basis of defending our perceived rights.
None of this makes a direct difference when you are stood outside Downing Street at 0°C, but if we are to defend against the present creep of regressive legislation, we should be analytic regarding what is being transgressed.
Dexter Govan is the communications manager and researcher of the Constitution Society. He holds a doctorate from the University of Edinburgh and is a historian of unionism in Britain and Ireland.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
 United Kingdom Constittuion Monitoring Group, ‘The Constitution in Review: Third Report of the United Kingdom Constitution Monitoring Group’, (London, 2022), p. 28, available at: https://consoc.org.uk/wp-content/uploads/2022/10/Constitution-in-Review-3.pdf.
 This is to say nothing of the politics of the Bill, which would compel some workers to cross picket lines even after voting for industrial action less they face the sack and make their unions financial liable for any breaches.