Right to Protest

Protest has many forms and not every individual can express every form of protest legally. But should the right to strike, a form of protest itself, be allowed for UK healthcare workers?

    The right to strike is a more nuanced form of protest, with a widespread acceptance that some professions (the police and non-civilian personnel in the armed forces) should not have the right to. Given that the withdrawal of labour in health and care services could mean the difference of life and death for some patients, the question is burdensome. If healthcare workers have the right to protest through striking, does this then need special consideration through self-regulation or external legislation?

    Striking is relatively rare in isolation and is usually predicated on the right to freedom of peaceful assembly and the freedom of association with others. This includes the right to form and join trade unions for the protection of workers’ interests as specified in the European Convention on Human Rights (1950). Indeed, in UK law there is not an explicit right to strike as an individual, but membership of a union and striking is not unlawful, and strikes are not, in general, uncommon. UK legislation has been updated over time and notably the condition under which a strike is legally permitted is now specified strictly, reducing the likelihood of strikes in general. It is also of note that in the UK, members of the armed forces are not permitted to form or join a union, and are therefore not permitted to strike according to ‘The Queen’s Regulations for the Army 1975’. The police are also unable to strike, although members can join an association – The Police Federation. Such restrictions on individual rights are given a legal exception within the EU Convention of Human Rights to prevent greater societal harm that could result from such professions striking.

    At present, there is no restriction in UK law to prevent healthcare workers from forming and joining a union. On this basis, if the legal requirements are met to strike, these professionals can do so as a form of protest in the same way as other workers. It is, however, uncommon for healthcare workers to strike – as demonstrated by the recent nurses’ strike in the UK being the first of its kind in the history of their union, as well as the 2016 junior doctors strikes being the first major strikes of their kind since the formation of the NHS.

    But the primary difference healthcare workers face, is that withdrawing labour from their sector raises ethical concerns, which is unlike most other workers. Doctors, for example, are bound by their training and professional body to do no harm, which, as a result of withdrawing their labour, is a risk. There was initially no evidence that doctors’ strikes had any detrimental effect on death rates, but this was largely thought as a result of the services being reorganised and community deaths likely increased. When doctor’s strikes are long in duration however, (twenty days), there is clear evidence of death rates increasing.

    Because of this resulting harm from the removal of healthcare labour, their unions in the UK have very seldom protested through striking. Healthcare worker unions typically act far more cautiously, representing their own from of self-regulation. This regulation also serves the purpose of reducing the chance that union members who strike are sanctioned by governing bodies such as the General Medical Council (GMC). Therefore, in practise, unions limit industrial action to the non-emergency aspects of care so as not to be perceived as irresponsible by the public which could impact the strike’s outcome.

    The UK’s current legislation permitting strikes aligns with the EU Convention of Human Rights, but that same convention allows for exceptions to the right for assembly and association that underpins the right to strike as follows,

 

    “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

   

    Thus, should a government choose to, it could legally restrict the right to assembly and association on the basis of protection of health. This could therefore remove or limit the right to strike from healthcare workers. Many European countries regulate this way against strikes. These regulations seldom make union membership unlawful, but they limit the way in which healthcare union members can protest by setting minimum standards of service. This approach has not yet been adopted in the UK, but many have argued that there is a balance to be struck between full rights of healthcare workers to strike, and total legal prohibition.

    In recognition of the vital role healthcare workers perform, and perhaps also of their usual restraint that limit their use of striking as protest, pay bodies are frequently set up by governments, including in the UK, to review and propose appropriate remuneration. The British government usually implements the recommendations of the NHS pay review body or the ‘Review Body on Doctors’ and Dentists’ Remuneration’ which are independent. These bodies were established with the objective to minimise the need for protesting through strikes within the sector and has achieved this with reasonable success so far. This also shows the pay awards are less likely to be unilaterally imposed on workers by the British government because the NHS pay review body has worker representation. However, recent evidence suggests that healthcare workers can be dissatisfied with recommendations given by these bodies, and therefore their existence does not itself give a real justification to remove the right to strike.

    Ultimately there are three interrelated questions to be raised here; firstly, should the UK law remove the healthcare workers right to assemble and associate that underpin striking rights? This would leave them in the same situation as non-civilian members of the armed forces, and in my view would not be proportionate as healthcare workers’ union rights have been proven as essential for appropriate representation, and in-themselves vital to our society. Secondly, if the fundamental rights of healthcare workers to assemble are to be maintained, should striking itself be prohibited? This is much like the condition of the police, with unionisation rights but the inability to strike. This would result in services to be maintained but would take away workers’ leverage. Given that so much work healthcare workers undertake does not impact directly on health, prohibiting striking would appear unduly harsh, and would not be commensurate with the responsible way in which their unions have historically acted.

    Finally, if striking is permitted, should be limited by law for healthcare workers compared to others? This is the model adopted by many European countries. Based on what we have seen, having a legal framework on what type of work could be withdrawn would lead to a better balance between allowing healthcare workers the right to take industrial action and that action not impacting public health. It could also take the burden of decision-making away from unions and establish a new societal norm for what is acceptable strike action.