Strikers Could Face Prison Under New Protest Law, Say Legal Experts

The Public Order Act – launched to clamp down on groups like Extinction Rebellion and Just Stop Oil – could be used against trade unionists too

Trade unionists who cause “serious disruption” while striking could face prison under the Government’s Public Order Bill, according to legal experts. 

The bill – essentially the most controversial parts of last year’s Policing, Crime, Sentencing and Courts Act, which failed to be passed – has major implications for the right of peaceful protest, including workers picketing while they are on strike, a new publication by Professor Keith Ewing and Lord Hendy KC has found.

The Institute of Employment Rights and Campaign for Trade Union Freedom briefing – 'Workers’ Rights in Times of Crisis' – states that some of the bill’s “remarkable provisions” present a clear danger to striking workers and their representatives.

New serious disruption prevention orders (SDPOs) are similar to 'control orders' applied to terrorist suspects. Those subject to an SDPO would be prohibited from doing anything specified in the order – including peaceful picketing.

An individual facing an SDPO could be forced to attend a police station at particular times of the day, stay at home – effectively under house arrest – and wear an electronic leg tag.

Failure to comply with a SDPO would be an offence, with anyone found guilty facing a fine and/or a period of up to 51 weeks in prison.

Most strikingly, according to the analysis, people could face prison even when they have not been convicted of a crime. The courts could do this if satisfied on a “balance of probabilities” – not “beyond reasonable doubt”, a stricter test – that the individual has, on at least two occasions within the previous five years, carried out a “disruptive” protest.

This includes activities likely to have caused “serious disruption to two or more individuals” – such as blocking the entry to a workplace – in England and Wales, or caused or contributed to someone else carrying out such activities. In other words, encouraged or enabled someone to cause “serious disruption". 

“It begs the question how the police would know that someone who has not committed an offence has been engaged in protest-related activity over the previous five years," the academics write. “Presumably [this] is an open and bare-faced acknowledgement that all those engaged in public protest which challenges powerful and malign organisations can expect to be the targets of police surveillance and record-keeping. How else could this proposed power work?”

"The second cause for concern... is that it targets people whose conduct is effective, not those whose conduct is unlawful," they add. "An individual or group of individuals could be the subject of SDPOs even though they have never been convicted of an offence, even though their conduct does not involve the commission of an offence (and there are plenty of public order offences to dodge), and even though – as already suggested -their conduct is peaceful.”

The authors found that the provisions in the bill are wide enough to put trade unionists at risk of an SDPO if their picketing could be said "seriously to disrupt two or more individuals, the employer being picketed, or a supplier or customer of the picketed employer”. 

Any general secretary or member of a union who supported such picketing could be said to have “caused or contributed” to it and could also be in line for an SDPO.

An individual or group of individuals could be the subject of SDPOs even though they have never been convicted of an offence

Professor Keith Ewing and Lord Hendy KC

The bill contains no definition of a “protest” for these purposes, and there is no protection for trade unions or trade unionists in the legislation – not even where the activities in question constitute picketing ‘in contemplation or furtherance of a trade dispute’. 

Other provisions in the Public Order Bill create new offences of obstruction of major transport works, and interference with the use or operation of national infrastructure. These provide a specific defence if the person accused of committing the offence was acting ‘in contemplation or furtherance of a trade dispute’. 

That has led the report's authors to find that “the omission of protection for trade unionists in relation to the new serious disruption prevention orders was unlikely to have been an oversight”. 

Steve Gillan, General Secretary of the Prison Officers Association – the members of which are banned from striking – told a union rally this week: “Thirty years ago, the Tories brought in the Criminal Justice and Police Act 1994, making it illegal for a prison officer to induce another to take any form of industrial action. We have been dragged through the courts...

“We ended up with a permanent injunction against us. We went on to take further action against health and safety breaches – and got a contempt of court charge. The courts fined us £230,000 – and threatened me with prison and the national chairman. It’s been a lonely path.

"We warned the rest of the union movement. They thought ‘it’s not affecting us’. I’m not bitter. But I’ve consistently warned that what comes our way will come your way. This is a militant government.”

As a recent House of Commons Library briefing noted, in the UK, police officers, members of the armed forces and some prison officers are prohibited from striking. The Trade Union Act 2016 introduced for the first time the concept of “important public services”, where workers must meet a higher ballot threshold of 40% of eligible voters to strike.

Now the Minimum Service Levels Bill will force unions to ensure a certain proportion of workers in six sectors, determined by the Business Secretary, turn up to work on strike days or risk hefty fines. 

Section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992 also makes it an offence to take industrial action in the knowledge or belief that human life will be endangered or serious bodily injury caused. As a result, many unions such as in the NHS already agree to provide so-called ‘life and limb’ cover during strikes.

Under international law, the UK has certain obligations to guarantee the right to freedom of assembly and association, including under Article 11 of the European Convention on Human Rights and Convention 87 of the International Labour Organisation. The new Public Order Bill and Minimum Service Levels Bill are both likely to face legal challenges from campaigners and unions if passed.

It comes after warnings that new anti-strikes legislation will introduce restrictions on freedoms that are “unprecedented in peacetime”.

Keith Ewing, Professor of Public Law at King's College London and one of the UK’s leading labour relations scholars, told an event in London on Tuesday night that the Minimum Service Levels Bill — currently being rushed through Parliament amid a wave of industrial action — will hand enormous powers to Business Secretary Grant Shapps. 

Under the legislation, workers will lose their right not to be unfairly dismissed during a strike in any services of the minister’s choosing within health, fire and rescue, education, transport, border security and decommissioning of nuclear installations and management of radioactive waste and spent fuel.

“Either you cross the picket line, or you will be fired and you will lose any legal protection that you might otherwise have,” Prof Ewing said. There is no pro-active right to strike in the UK – instead striking workers are given limited protections against unfair dismissal. 

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