Abstract

It is well known that the elaborate notice provisions and the ban on secondary action in UK strike law have been the subject of consistent and long-standing criticism by authoritative international bodies, and regarded as a violation of international human rights law under the norms of the European Social Charter and the International Labour Organisation. The recent decision of the European Court of Human Rights in RMT v United Kingdom considered these domestic legal provisions against the standards set by Article 11 of the European Convention of Human Rights. In an ambivalent judgment, the Court appeared to give with one hand and take back with another. While affirming that the right to strike is ‘clearly protected’ under Article 11, a legal conclusion with important ramifications in the domestic legal context, the trade union’s complaint was not upheld. The complaint concerning the pre-strike notice provisions was rejected as inadmissible, and while secondary action was protected as an ‘accessory’ freedom under Article 11(1), the UK’s complete ban on secondary action was regarded as justified under Article 11(2) on the basis of a wide margin of appreciation accorded to the State. The article contends that this reasoning is deeply flawed and the likely product of political pressures that are compromising the effective functioning of a human rights court.

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