The Right to Strike

0:07 [SPEAKER_00]: Good afternoon. [SPEAKER_00]: This is another podcast from the Institute of Employment Rights and the Southening. [SPEAKER_00]: We're going to be discussing the right to strike and the limitations on it. [SPEAKER_00]: My name is John Hendi. [SPEAKER_00]: I'm a member of the House of Lords and a Kings Council.

0:25 [SPEAKER_00]: I'll [SPEAKER_01]: I'm a Professor of Labelore at the University of Bristol and also one of many Vice Presidents of the Institute. [SPEAKER_01]: So it's my pleasure to be here with John today to discuss this with you. [SPEAKER_00]: Well, we thought we might start by going back in history a little bit, because the right to strike is a new right, of course, not recognizing until the 20th century, but strikes themselves have got a very long provenance.

1:06 [SPEAKER_00]: The first recorded strike [SPEAKER_00]: was over a thousand years BC and is recorded in hieroglyphics in one of the pyramids in ancient Egypt. [SPEAKER_00]: And that was a strike by the people that were building the pyramids, not I imagine over pay, but over terms and conditions hours of work and quality of food and so on.

1:32 [SPEAKER_00]: We don't, I think, know what the outcome of that strike was, do we? [SPEAKER_01]: Um, it looks as if it was a period of industrial unrest where they hadn't been paid for a period of time and they didn't have enough food. [SPEAKER_01]: And obviously that was restored in due course, but it's a really interesting event.

1:50 [SPEAKER_01]: We suspect, I think, that there was strikes even before there. [SPEAKER_00]: Of course, of course, that's only the first recorded strike in history. [SPEAKER_00]: So, I mean, if you go back really to see when the first strikes might have occurred, they could not have occurred until people were employed by other people.

2:12 [SPEAKER_00]: It's providing one's labour to another for reward or the means to sustain oneself. [SPEAKER_00]: that produces an employment relationship and only then one might get a strike, and I suppose the other feature of that incident is that it demonstrates that you've got a more than one person to strike, I mean theoretically, of course one person could go on strike, but strikes normally are collective activities.

2:45 [SPEAKER_00]: So the consequence of that little introduction is just to remind us that for the first 300,000 years of modern human history, which is what it is, and indeed they're pushing the limits back further. [SPEAKER_00]: There were no strikes, there was no employment because everybody was a hunter and a gatherer and a forageer, [SPEAKER_00]: and nobody was employed by anybody else, certainly people worked for other people, but only in terms of reciprocal labor or looking after the family and so on.

3:22 [SPEAKER_00]: So once we get to [SPEAKER_00]: an economy which is built on the use of other people's labor, then of course you get more and more strikes. [SPEAKER_00]: They were strikes during the Roman period. [SPEAKER_00]: They were strikes during the period after the Romans left Britain and before the Normans came and then after the Norman conquest, we start to see what you and I have been interested in which is the legal restrictions on the [SPEAKER_00]: I think the first recorded restriction, I may be wrong about that, that is 136 and audience, again, building workers in London who were combining together to prevent brick layers coming in from the countryside and undercutting them.

4:15 [SPEAKER_00]: And then of course, what is known to every label or student, the statutes in the 15th century during the black death, when there was a massive labor, shortage consequent on a third of the population dying through plague, [SPEAKER_00]: and the price of labor naturally increased and the reaction to that was to impose restrictions on combination and on exercising strike action in order to compel employers to raise the price of labor.

4:55 [SPEAKER_00]: And from that time on there were restrictions, those statues remained in [SPEAKER_00]: until they were consolidated really by the Combination Act in 1799 and 1800, which were repealed and then reimposed in 1824 and 1825. [SPEAKER_00]: Since when strikes were [SPEAKER_00]: considered to be unlawful conspiracies and punished as such, criminal conspiracies and civil conspiracies and only really legitimated in the trade disputes act of 186, 199, 166, or yeah.

5:43 [SPEAKER_01]: Yeah, absolutely. [SPEAKER_01]: And I think, I mean, there are different strands to that history. [SPEAKER_01]: You can tell the story in different ways. [SPEAKER_01]: I think it's fundamentally about power relations [SPEAKER_01]: the subordination of the employment relationship so that you can achieve certain collective aims for the welfare of the workers who are affected.

6:06 [SPEAKER_01]: But it is also linked, I think, to ideas of civil liberties and political rights. [SPEAKER_01]: You know, the emergence of the view that we're all entitled to freedom of association. [SPEAKER_01]: including in trade unions for the protection of our interests, and also freedom of speech, which is really important for contemporary democracies, so strikes play a kind of pragmatic role and securing basic welfare for everybody, but they also play a really important social and political role, I think, in any nation state.

6:42 [SPEAKER_00]: I think that's right, and I think your first point about power is really the key to it, because there is an imbalance of power between the work or the one side and the employer or the other in particularly in capitalist societies, and bearing in mind that for most people [SPEAKER_00]: in order for the worker to have some balancing power to the collectivity of capital, they have to act collectively as well.

7:21 [SPEAKER_00]: And ultimately, withdrawal of labor is the only sanctioned at workers have got. [SPEAKER_01]: Absolutely. [SPEAKER_01]: So we often think that there should be a legal right, a positive right to strike. [SPEAKER_01]: And certainly, that's the assumption [SPEAKER_01]: international labour standards.

7:43 [SPEAKER_01]: But here the UK is quite different to many other states. [SPEAKER_01]: So in a lot of countries you'll find a right to strike either expressly or implicitly in a written constitution or in legislation. [SPEAKER_01]: But in the UK exercising your right to strike, taking industrial [SPEAKER_01]: is regarded as a fundamental breach of your contract of employment.

8:12 [SPEAKER_01]: You can be dismissed for doing so and your trade union can be found liable in taught for calling you to take industrial action and reaching your contract. [SPEAKER_01]: So what we have in our legislation is these [SPEAKER_01]: carve-outs, these immunities for trade unions when they call industrial action, or particular statutory protections from dismissal, but we still lack a real right to strike.

8:43 [SPEAKER_00]: Yeah, I think the origin of it is the, if we go back in history, the curious form that the trade disputes at 1906 took instead of stating workers and their unions will have a [SPEAKER_00]: It's said that, effectively, that workers and their unions will have statutory protection against what would otherwise be common law liability for, as you say, breaching contracts or inducing breach of contract or conspiracy or intimidation if they have a genuine trade dispute which is defined and so on.

9:29 [SPEAKER_00]: basis of preserving the common or liability, most of which was dreamed up in order to penalise a strikes and unions and so on, but preserving that common or liability while giving us, as you say, a carve out to unions has meant that we haven't had a positive right to strike as [SPEAKER_00]: probably every other country in Western Europe has, and that has made a big difference to the way that the courts have treated it.

10:07 [SPEAKER_00]: As you mentioned, the cases in the 1960s [SPEAKER_00]: There were cases where the courts found new forms of liability that didn't fall within the statutory carve outs and therefore the unions were liable, although nobody ever thought of it before. [SPEAKER_00]: So that's quite a problematic, but I suppose we ought to mention the judgment in [SPEAKER_00]: Cerco and RMT and Midland and Aslef in 2014 I think it was when the Court of Appeal presided over by St Patrick Elias found that it was no longer good enough to say well trade unions are relying on some sort of immunity and therefore the [SPEAKER_00]: legal burden to demonstrate that they're doing something lawful is higher than it would otherwise be.

11:07 [SPEAKER_00]: The Court of Appeal holding that in fact, because of the international law that we've discussed, [SPEAKER_00]: the balance was evenly held. [SPEAKER_00]: So we've almost got a right to strike but not quite and we certainly haven't got it in the terms of Article 6 for the European Social Charter or Article 8 1D of the International Covenant on Economic Social Cultural Rights.

11:35 [SPEAKER_01]: I think that's an entirely fair observation. [SPEAKER_01]: It's a reflection of [SPEAKER_01]: The growing importance of international human rights and the right to strike is one of those crucial human rights. [SPEAKER_01]: But at the same time, that notion that all this means is that you look at this in a very balanced fashion and you weigh the interests of the workers and trade unions on the one hand with those of the employers on the other is not quite the same thing as having a positive right to strike.

12:03 [SPEAKER_00]: No, absolutely. [SPEAKER_01]: I think if we go on to kind of modern contemporary history and John was one of the key advocates in UK courts so you're better equipped to discuss this than I am. [SPEAKER_01]: But what we saw was a real attempt to tame the power of trade unions by the late 1970s and the emergence of increasing controls [SPEAKER_01]: so that you had to strike in accordance with the Union rule book, then you had to strike and have a majority vote before it was lawful to take strike action, and then we hit the trade Union Act 2016 where it becomes even more difficult and irrational that you have to have a 50% turnout threshold in order for your ballot to be justified, and if it's an important public service,

13:01 [SPEAKER_01]: You need 40% of those eligible to vote, to vote, and favor. [SPEAKER_01]: And these democratic, so-called democratic thresholds. [SPEAKER_01]: They don't reflect anything that's required in democratic public life. [SPEAKER_01]: I don't think many governments would be successfully elected if we applied the same standards to them.

13:19 [SPEAKER_00]: No. [SPEAKER_00]: And of course, it's almost unique, Britain is unique and imposing, such balloting requirements, or even the requirement to balance at all. [SPEAKER_00]: I mean, if you tell your colleagues in France that we have to ballot to go on strike, they think you'll mad. [SPEAKER_00]: I mean, it's just unheard of.

13:39 [SPEAKER_01]: Yes. [SPEAKER_01]: And those requirements have lengthy notification to the employer so they can prepare the 14 days, which was the trade union act. [SPEAKER_01]: again in 2016. [SPEAKER_01]: And all the details that now have to be on the balancing, well, did have to be on the balancing paper up until December 25.

14:00 [SPEAKER_01]: Yes, with the employment rights act 2025 coming into force. [SPEAKER_01]: I don't know if you want to kick off by talking about. [SPEAKER_01]: the legislation because you played a major role in the House of Lords. [SPEAKER_00]: Well, you know, I think that's stretching it a bit. [SPEAKER_00]: Isn't it too early?

14:20 [SPEAKER_01]: All right. [SPEAKER_00]: I sat in the back row basically and I did move over a few amendments on the right to strike, but government wouldn't accept any of them. [SPEAKER_00]: So I think my role is in effect non-existent. [SPEAKER_00]: But, yeah, I mean, there are many issues that I felt were important.

14:46 [SPEAKER_00]: One of them was that the Labor Party rather had prior to the election in July, 2024. [SPEAKER_00]: set out its policy on industrial relations, including on strikes, and one of the elements of the policy was that our industrial action law should comply with Britain's international obligations.

15:15 [SPEAKER_00]: And that was abandoned by the Labor Party after the election. [SPEAKER_00]: And there's really not been an explanation for that. [SPEAKER_00]: I don't quite understand how it could be justified. [SPEAKER_00]: And the government had an majority of 174. [SPEAKER_00]: So it could have made those changes.

15:36 [SPEAKER_00]: As indeed it had in... [SPEAKER_00]: 1984 and 1986, but anyway, it didn't make those changes and the consequences that our law now doesn't comply with international obligations. [SPEAKER_00]: In a whole number of respects, which I suppose we haven't really got time to go through, but we could just go through a few of them.

16:00 [SPEAKER_01]: I agree with you. [SPEAKER_01]: I think the architecture and the framework of that very coercive legislation [SPEAKER_01]: you know, the 1980s onwards has just been retained. [SPEAKER_01]: So what has happened is that this government has modified and repealed aspects of the trade union Act 2016 and perhaps more importantly that terrible piece of legislation, the strikes minimum service levels Act of 2023.

16:27 [SPEAKER_01]: But [SPEAKER_01]: that requirement of a ballot, those requirements of notification to the employer, they've been tinkered with and they're not quite as cruel and stringent as they were, but basically they remain the same, don't they? [SPEAKER_00]: They do, they do, and they [SPEAKER_00]: Britain's international obligations are very clear the international labor organization under Convention 87 has got two super-physory bodies, one called the Committee of Experts on the Application of Conventions and Recommendment.

17:04 [SPEAKER_00]: stations and the other called the Committee on Freedom of Association, and they have both said on many many cases. [SPEAKER_00]: In fact, they said on every occasion, in which the United Kingdom has been assessed for its compliance with its obligations under ILO Convention 87, they've said that our law doesn't comply, and one of those [SPEAKER_00]: is the, as you say, the obligation to give notification to the employer of a ballot.

17:36 [SPEAKER_00]: And the other, of course, a very important one, is the absolute prohibition on solidarity action, and secondary action, that's to say, asking employers, asking workers employed by Sir, an employer who is not passing to the dispute to take industrial action. [SPEAKER_00]: We've outlight outlawed that since the 1980s, [SPEAKER_00]: Our governments have been told over and over again that that is contrary to our obligations.

18:11 [SPEAKER_00]: And these are obligations which the UK voluntarily undertook to comply with. [SPEAKER_00]: I think the last time it was said was in... [SPEAKER_00]: The ILO review of the PoPNO ferry dispute in 2023, and they said that the government or the social partners, that's to say the government, the employers and the unions are to sit down and find a way of legislating to permit solidarity action.

18:48 [SPEAKER_01]: Yes, because we realized that otherwise without some kind of solidarity action being possible for people who are working on the boats, in that instance, the Piano Ferries, you had no way to place adequate pressure on the employer to adhere to their collective agreements and to pay workers a reasonable sum for their labor.

19:12 [SPEAKER_00]: or even to comply with the law? [SPEAKER_01]: Yeah, even to the comply with the law. [SPEAKER_01]: So it was in that scenario because you couldn't take solidarity action, it was easy for the employers just to, [SPEAKER_01]: pay off people for their breaches of the law rather than actually respecting their legal obligations.

19:32 [SPEAKER_00]: And of course, when they did that seven o'clock in the morning dismissing the entire British workforce on Pino Faris that go across the channel. [SPEAKER_00]: The [SPEAKER_00]: the unions, the employer broke the law by failing to consult and unfairly dismissing everybody, but the unions couldn't break the law because they were to face the injunctions and contempt preceding sequestration and all the rest of it, although from a practical point of view they could have asked the [SPEAKER_00]: guys that tie up the ships and untie them and the harbour masters and the lorry drivers that take the cargo onto the boats and refuel the boats and water them and so on.

20:24 [SPEAKER_00]: They could have asked them to take that solidarity action but the law prevented it. [SPEAKER_01]: That's true and if we were in Sweden it would be a very different situation. [SPEAKER_01]: So it makes a huge difference. [SPEAKER_01]: I mean I suppose [SPEAKER_01]: the employment rights act 2025 does make some important changes.

20:47 [SPEAKER_01]: It doesn't change the fundamentals, but I think it's probably worth noting that it does [SPEAKER_01]: say that it will get rid of the 50% turnout requirement, although that is going to be tied with the new electronic routing guidance, which will come eventually as well. [SPEAKER_00]: Yes, the government's consulting isn't it, the moment on [SPEAKER_00]: on electronic and workplace balloting, and some of the proposals seem a little bit controversial.

21:19 [SPEAKER_00]: I read the TUC Council that responds to the consultation, which is an impressive dot document, is really quite complicated. [SPEAKER_00]: It doesn't seem to me that it should be, we should have mentioned at the beginning that one of the biggest restrictions on the right to strike and the problem with thresholds and so on is the fact that current law requires ballot to be run by posts.

21:49 [SPEAKER_00]: That's to say the unions got to provide each member with a ballot paper. [SPEAKER_00]: by first-class post with a stamped address envelope to return the ballot paper in. [SPEAKER_00]: Well, we're in a different age to what 30 years ago. [SPEAKER_00]: I mean, everything is done electronically nowadays.

22:13 [SPEAKER_00]: And even the conservative party, it lacks its offices by electronic means. [SPEAKER_00]: It does seem really absurd that we're having to [SPEAKER_00]: go through such a performance to get back, get to electronic ballicing, and of course workplace ballicing as well. [SPEAKER_00]: That should come about, but I think the proposal at the moment is only with the agreement of the employer, which I can't imagine that many employers will agree to.

22:45 [SPEAKER_01]: No, I imagine they won't. [SPEAKER_01]: I mean the good thing is that we have got rid of [SPEAKER_01]: the 40% support in important public services, which also just didn't map on to the International Labour Organization standards regarding essential services. [SPEAKER_01]: That was so problematic and at least that is gone.

23:14 [SPEAKER_01]: We have seen a removal of [SPEAKER_01]: the picket supervisors which I think will be good because it's really problematic to have some one individual responsible for an entire picket and also visible to the employer at the same time. [SPEAKER_01]: that think it opens up problems with potential trade union discrimination, which obviously comes up under ILO Convention 98, Article 1, Fundamental, absolutely, and all sorts of other issues [SPEAKER_00]: I mean, we're back to picketing law as it was, as in fact the conservatives laid it down in the 1980s, so we're still got the limit of six pickets per workplace entrance, which is a grave restriction on freedom of expression, as people who are on strike want to demonstrate that they're on strike.

24:17 [SPEAKER_01]: absolutely and you're much more influential when I found that when there are very small pickets you often get forms of kind of bullying and people asking you to move. [SPEAKER_01]: When you have sizable pickets they will never challenge the number of people who are actually picketing outside the workplace and there's more difference and then there's usually more effectiveness.

24:41 [SPEAKER_00]: So yeah interesting [SPEAKER_01]: I suppose the other thing that we ought to talk about is the fact that there will be a change to the mandate of the ballot, that it won't be limited just to six months, but it will now be a 12-month mandate, which means that you can stay out on strike for longer without the cost and complexity of rebalancing, whether it's going to be electronic [SPEAKER_01]: And also, it means that you won't be hiring an independent screw to near when you've got more than 50 workers involved to manage that for you.

25:23 [SPEAKER_01]: So I guess it will be more affordable for unions. [SPEAKER_00]: Yeah, I think that's a very important change that unions won't have to bear every few months if the dispute is not one in the first few months. [SPEAKER_00]: the extension of protection against dismissal and against detriment.

25:49 [SPEAKER_00]: Yeah, do you want to speak with that? [SPEAKER_01]: Yeah, absolutely. [SPEAKER_01]: I mean, obviously the protection against dismissal, which is under Section 238A of the Trade Union Labor Relations Consultation Act, [SPEAKER_01]: That was always a very important protection because it was going to provide protection to employees who were called out on strike by their union and that action was lawful and protected under UK law.

26:17 [SPEAKER_01]: But they were only protected for 12 weeks unless for some reason the employer had acted effectively improperly and that could be demonstrated. [SPEAKER_01]: that was always criticized by the International Labour Organization and also the European Committee of Social Rents writes under the European Social Charter, who is supposed to have indefinite protection from dismissal when you have taken lawful action.

26:43 [SPEAKER_01]: So that is a significant shift, I think. [SPEAKER_01]: I think it's appropriate. [SPEAKER_00]: and the protection against detriment for organizing a strike, which was actually established by the Supreme Court surprisingly enough. [SPEAKER_01]: Well, what they did is they made the point, I think we also want to add in here that obviously the UK ought to be abiding by its international liberal organization obligations, but under the Human Rights Act it needs to comply with the jurisprudence of the European Court of Human Rights.

27:16 [SPEAKER_01]: And the European Convention on Human Rights are to pull 11 on freedom of association and we get back to those civil liberties and freedom of association, the freedom to form and join trade unions for the protection of your interests. [SPEAKER_01]: And it has been very clear. [SPEAKER_01]: And the European Court of Human Rights case law.

27:36 [SPEAKER_01]: that you ought to be protected from any form of detriment for calling lawful industrial action. [SPEAKER_00]: And all participating. [SPEAKER_01]: Participating. [SPEAKER_01]: So for being responding to a call for participating or even for organizing. [SPEAKER_01]: And we have the case brought by Mrs. Mercer against her employer, the alternative futures group.

28:03 [SPEAKER_01]: and she had both been involved as a trade union official in helping to organize the action and she participated in it and she was suspended. [SPEAKER_01]: She was suspended on pay but she missed out on other contractual benefits. [SPEAKER_01]: So she wasn't dismissed, she couldn't claim that statutory protection and so she tried to claim protection from detriment for trade union activities.

28:28 [SPEAKER_01]: as you'd expect. [SPEAKER_01]: And what is section 146 of the trade union labor relations consolidation out? [SPEAKER_01]: And it was found, ultimately, by the UK Supreme Court, [SPEAKER_01]: after this had traveled through the courts with different twists and turns that this statutory provision prohibiting detriment for engagement and lawful trade union activities would not cover her engagement in a strike even though it was lawful action.

29:04 [SPEAKER_01]: And for the first time I think [SPEAKER_01]: on the subject of the right to strike, the UK Supreme Court issued a declaration of incompatibility which should be deeply embarrassing to the government and means that they really needed to urgently be introduced some kind of statutory protection.

29:25 [SPEAKER_01]: What we do have now is a new section 236A and further provisions in the Trade Union Labor Relations Consolidation Act. [SPEAKER_01]: This is introduced by section 76 of the Employment Rights Act 2025. [SPEAKER_01]: And it talks about setting out certain prescribed detriments, which should be identified, which you should not be exposed to when you take lawful industrial action.

29:52 [SPEAKER_01]: If you're an employee and you're dismissed, that still gets dealt with under the dismissal provisions in the Trade Union Laborations Consolation Act. [SPEAKER_01]: But if you're a worker and you're dismissed, there is even the possibility that you could claim protection for detriment. [SPEAKER_01]: So what really matters now is what are the prescribed deptraments.

30:14 [SPEAKER_01]: And again, we're going to see consultation over this. [SPEAKER_01]: And that really matters, I think. [SPEAKER_00]: yeah absolutely and it's quite it's important because I did a case some years ago now over a decade ago you remember there was a dispute at British Airways where the cabin crew walked out.

30:36 [SPEAKER_00]: And one of the punishments that British Airways imposed on the cabin crew was withdrawal of travel benefits, which was non-contractual. [SPEAKER_00]: So I hope that in the consultation that will be one of the detriments that it will extend to non-contractual benefits, not just loss of pay, obviously, or loss of their chance of promotion or whatever.

31:00 [SPEAKER_00]: but it will also extend to non-contractual benefits. [SPEAKER_00]: Because that was a very, very important consideration for cabin crew, one of the attractions of the job. [SPEAKER_00]: In fact, yeah. [SPEAKER_00]: But you mentioned the European social [SPEAKER_00]: rights committee and the European, which comes under the European Social Charter, which just to explain for those unfamiliar with this, nothing to do with the European Union.

31:31 [SPEAKER_00]: This is to do with the Council of Europe. [SPEAKER_00]: It's a much bigger organisation than the European Union, but it doesn't have the commercial or economic. [SPEAKER_00]: links, but what it does have is a European social charter, 1961 and 1996, UK is only signed up to the 1961, but the provisions or the clauses that we're concerned with are identical in both versions.

32:00 [SPEAKER_00]: And one of the clauses is Article 64, which provides effectively for [SPEAKER_01]: Yes, and it complements the European Convention on Human Rights and Article 11, which also protects the right to strike now. [SPEAKER_01]: We know that from the case law, but the European Social Charter was their first by expressly protecting the right to strike.

32:21 [SPEAKER_00]: Yeah, absolutely, absolutely. [SPEAKER_00]: And the European, what's interesting about that is that the European Social [SPEAKER_00]: rights committee which supervises each country's compliance with its ratified articles of the European social charter has just produced or produced in January a report on the United Kingdom.

32:49 [SPEAKER_00]: And that makes some quite relevant criticisms of the United Kingdom law on the subject. [SPEAKER_01]: Yes, I've even got the copy here in front of me, but I think it makes some really important points, so [SPEAKER_01]: The European Committee of Social Rights was asking all states how they dealt with bands on strike action and who they were banning from taking strike action.

33:19 [SPEAKER_01]: And the UK came forward and admitted that the police a band, that prison officers a band, and the armed forces. [SPEAKER_00]: For prison officers in England? [SPEAKER_01]: In England, yes. [SPEAKER_00]: Not in Scotland. [SPEAKER_01]: Yes. [SPEAKER_01]: And... [SPEAKER_01]: and in the armed forces, and the committee really saw the law in the UK as entirely anomalous.

33:44 [SPEAKER_01]: They couldn't understand why they couldn't be proportionate in industrial action. [SPEAKER_01]: for the police and for prison officers, and if there is a restriction as they could be good reasons for in the armed forces, you have to have compensatory guarantees, like compulsory arbitration.

34:01 [SPEAKER_00]: Pensatory guarantees is the phrase that is huge, technical phrase, but it means that workers have got another way, must have another way to exert pressure on their employer to influence [SPEAKER_00]: And as you rightly say, one of the mechanisms, of course, conciliation, mediation, or ultimately arbitration.

34:27 [SPEAKER_00]: But arbitration by our body, which is independent, impartial, speedy and binding. [SPEAKER_00]: And all those four qualities are very important because in relation to prison officers, for example, have challenged this internationally. [SPEAKER_00]: they have of course the pay review body for the prison service but nobody could say that that qualified for those elements.

34:59 [SPEAKER_01]: So here we are we've seen some significant change in the law in December but we're still waiting for those further important structural changes that could transform the landscape for the [SPEAKER_00]: Can we say a bit more about the International Labor Organization, because one of the issues that UNI have personally been concerned with getting some assistance to the International Trade Union Confederation was the application by the ILO to the International Court of Justice.

35:36 [SPEAKER_00]: in relation to the right to strike. [SPEAKER_00]: So just to lay out the stall here, the International Labor Organization was set up in 1919 as part of the Treaty of Versailles, which ended the First World War. [SPEAKER_00]: And as part now of the United Nations establishment, global, and every country on earth with the exception of two or three is a member of the ILO.

36:09 [SPEAKER_00]: And what's unique about it is that it's tri-par side. [SPEAKER_00]: It has representatives from each country. [SPEAKER_00]: But three parties, one, a government delegation, an implied delegation, and a trade union, a worker. [SPEAKER_00]: delegation and the ILO has been consistent in holding that that ILO convention A87 which protects the right of organization both in plus associations and trade unions right to organize has been consistent in saying that that protects also the right to strike.

36:48 [SPEAKER_00]: It may be thought to be a curiosity, but there's no mention of the right to strike itself. [SPEAKER_00]: And what happened at some... [SPEAKER_00]: 14 years ago perhaps a little bit longer than that is that the employers group on the ILO suddenly decided that they wanted to argue that because ILO Convention 87 doesn't expressly mention the right to strike.

37:16 [SPEAKER_00]: There is no right to strike protected by ILO Convention 87 and that some compromise was reached but ultimately a couple of years ago [SPEAKER_00]: The ILO decided to exercise that its power under its constitution as part of the United Nations to refer to the international court of justice for an advisory opinion as to whether ILO convention 87 does or does not protect the right to strike.

37:47 [SPEAKER_00]: And we were partied to the hearings, not in person, but observing the hearings. [SPEAKER_00]: And now we wait for a decision on it. [SPEAKER_00]: It's an important case, though, isn't it? [SPEAKER_01]: It's a vital case. [SPEAKER_01]: So for the largest part of the International Labour organisation's history, [SPEAKER_01]: Tripartite Committee on Freedom of Association was formed in 1951.

38:20 [SPEAKER_01]: We have statement that the right strike is protected under Convention 87, which was adopted obviously in 1948. [SPEAKER_01]: But also that the right strike is implicit in freedom of association in the ILO constitutional [SPEAKER_01]: in the Declaration of Philadelphia from 1944 when it became, you know, a UN agency.

38:50 [SPEAKER_01]: So it's a really long history and the way in which that committee on freedom of association reaches these decisions is it has to be unanimous. [SPEAKER_01]: So the P&O findings and the importance of stating a right to strike and second reaction, that was employers and workers and governments together with an independently qualified chair.

39:12 [SPEAKER_01]: So this has continued over a period of time, but the employers group at the International Labour Conference has taken this view after the Cold War. [SPEAKER_01]: that they really wanted to reduce the influence and power of the International Labour Organization and promote business interests.

39:33 [SPEAKER_01]: in a much more deregulatory fashion. [SPEAKER_01]: And so that culminated in that walkout of the employers group from the committee on the application of standards, a rejection of the committee of experts' findings, even though they're identical to the committee on Freedom of Association's findings, and we get this use of the ILO bureaucracy against itself.

39:57 [SPEAKER_01]: There's the compromise agreement in 2015, but the employees keep blocking the right strike cases. [SPEAKER_01]: So of course the ILO experiencing that blockage time and time again and given how important the right strikers to give workers leverage. [SPEAKER_01]: had to go to the International Court of Justice.

40:16 [SPEAKER_01]: So it was a real privilege to work with John and with the our colleagues at the International Trade Union Confederation to put together some written statements and also to assist in advising on the final oral submissions. [SPEAKER_01]: Yeah. [SPEAKER_01]: And the government has considered this the UK government has considered that the right to strike is covered in convention 87, but was less positive about standards being recognised at the international level.

40:49 [SPEAKER_01]: And that probably is due to the fact that the UK simply does not comply with ILO standards, for example, in safety action. [SPEAKER_00]: Yeah, I suppose it might be said, given what's happening in Iran at the moment and the complete disregard of international standards in relation to invading and bombing other countries and so on, that the scope or the relevance of international law has fallen by the wayside, [SPEAKER_00]: It seems to me that it's the other way around it accentuates the importance of international law and conformity to it.

41:37 [SPEAKER_00]: And the United Kingdom ought to stand for international law in all its aspects, in particular, in relation to industrial relations. [SPEAKER_01]: Certainly, so we will have to see what comes next and we'll look forward to the International Court of Justice's advisory opinion, and hopefully we will be back to talk about that when that happens.

42:01 [SPEAKER_00]: Absolutely.