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Can the UK government legislate to break strike action?

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Piles of undelivered mail were mounting on Friday as Royal Mail employees began a further six days of UK-wide industrial action.

As nurses, ambulance crews and a swath of public sector workers ranging from driving instructors to jobcentre staff prepare to join picket lines over pay, the government is threatening a fresh clampdown on unions’ ability to call strikes.

Industry figures have warned that train operators and unions must reach a deal this weekend to avert chaos on the railways over Christmas. Meanwhile troops have begun training at London’s main airports to replace Border Force officials who will walk out for much of the holiday period.

Chancellor Jeremy Hunt told the Financial Times on Friday that there could be no concession on public sector pay, while prime minister Rishi Sunak has pledged “new tough rules” to make it harder for unions to hold walkouts.

But lawyers say the UK’s rules are already restrictive, and that tightening them further could backfire.

What has the government done to curb strikes?

Unions say they are already operating under one of the most restrictive regimes in the developed world, following 2016 legislation that set high thresholds for votes on industrial action to pass and stringent rules on holding ballots.

Since the latest wave of walkouts began, ministers have rushed through measures allowing employers to hire agency staff to break strikes and seek damages of up to £1mn from unions if a strike is held to be unlawful.

These measures have made it harder to organise effective action, but they have not prevented unions winning a strong mandate to strike from hundreds of thousands of public and private sector workers.

Bruce Carr, KC, who in 2014 led a review of the law governing industrial relations for then prime minister David Cameron, told the BBC this week that ministers had, if anything, made the situation worse by seeking to pile on extra restrictions.

“If you push people who have a legitimate grievance . . . into a corner, you simply push the dispute into a different direction. You don’t take it away,” he said.

What other measures is it considering?

Downing Street has signalled that long-awaited legislation to guarantee “minimum service levels” on the railways during strikes will reach its second reading in the new year.

The bill was first promised in the 2019 Conservative general election manifesto but it was only introduced to parliament in late October, with ministers blaming the delay on the Covid-19 pandemic.

Sunak’s team has suggested that the government could both accelerate the proposed legislation and expand it to cover sectors other than transport, although details have not been forthcoming.

But transport secretary Mark Harper admitted this week that the legislation could not be implemented in time to affect the current dispute between the RMT union and employers.

Downing Street has not given any other details of the “tough rules” promised by Sunak. But business secretary Grant Shapps — who clashed with the RMT in his previous role as transport secretary — this summer set out a “16-point plan” to take on the unions, which is likely to form the basis of current government thinking.

Shapps’ proposals included setting higher thresholds for strike ballots to pass in the public and private sectors; requiring unions to give more notice of walkouts; tightening rules on picketing; and making it easier for employers to bypass unions and put pay offers directly to workers.

Would these measures work?

Industry figures say minimum service levels, once in place, will help, depending on where they are set. Matthew Lesh, head of public policy at the Institute of Economic Affairs, a rightwing think-tank, said similar legislation was already in force in Spain, France, and Italy and that it “would effectively limit the ability for workers to strike without facing dismissal, as they are currently allowed”.

But unions would fiercely resist this and other measures they view as an attack on the fundamental right to strike.

Kate Bell, assistant general secretary of the Trades Union Congress, the UK’s main movement for organised labour, said there would be “no easy answers” for the government if it wanted to go further.

She said that Shapps’ proposals would probably require primary legislation that would be challenged in the House of Lords and could breach the UK’s commitments on workers’ rights under its trade agreement with the EU.

Richard Arthur, head of trade union law at Thompsons Solicitors, who is seeking a judicial review of the new rule on agency workers, said the government could lay itself open to further legal challenges if it pursued measures in breach of International Labour Organization standards.

“The more you pile on in terms of restrictions . . . the more you leave yourself open to action in the Strasbourg court,” Carr said.

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