On 25 January 2023, Doughty Street Chambers hosted an event entitled “Protecting the Rights of Trade Unions and Protestors”. The event was initially billed to focus on the Public Order Bill and the Transport Strikes (Minimum Service Levels) Bill, but in the lead-up to the event the government also tabled the Strikes (Minimum Service Levels) Bill. Our brilliant speakers, Eddie Dempsey and Justin Madders MP, were joined by practitioners from within chambers, Nick Toms, Pippa Woodrow and Cormac Devlin. The full recording and slides are available here. Myriad problems with these proposed pieces of legislation were identified and analysed by our speakers. This post focuses on one aspect thereof: the chilling effect such legislation is likely to have on picketing.
The impact of the Public Order Bill on picketing
At the time of writing this Bill is working its way through the House of Lords. As presently drafted, it permits the imposition of “Serious Disruption Prevention Orders”. As Pippa Woodrow explained in the seminar, such Orders are modelled on Football Banning Orders and can be imposed without conviction pursuant to Clause 20 of the Bill. Clauses 10-14 also allow for the expansion of suspicionless stop and search into the protest arena, meaning that the UK is yet again likely to come under Strasbourg’s scrutiny in respect of Article 5, as it did in cases like Gillan and Quinton v United Kingdom.
Both these powers are likely to have a particular chilling effect on picketers. Under Clause 20(2)(a), a magistrates’ court can make a Serious Disruption Prevention Order if it is satisfied on the balance of probabilities that on at least two separate occasions in the last five years a person “carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation” (Clause 20(2)(a)(iii)), or even “caused or contributed to” another person doing such (Clause 20(2)(a)(v)). Similarly, given the hostility the Metropolitan police and other police bodies have demonstrated towards picketers in the recent past (see for example here), unions may have little faith that their pickets will be unaffected by the new suspicionless stop and search powers.
While the various protest-related offences prescribed under the Bill contain defences that the disruption was “wholly or mainly in contemplation or furtherance of a trade dispute”, as presently drafted there appears to be no such carve out in respect of the Serious Disruption Prevention Orders, nor any suggestion that activities connected to trade disputes will be exempt from the suspicionless stop and search powers. Trade unionists may therefore fear that the much-vaunted carve out for trade unions will not prevent the imposition of these draconian powers on their members and organisers, who may well choose to stay away from pickets (particularly those who have been at another picket in the preceding 5 years).
The impact of the Minimum Service Level Bill on picketing
The Strikes (Minimum Service Levels) Bill, coupled with the Transport Strikes (Minimum Service Level) Bill, permits the Secretary of State to pass Regulations prescribing the minimum level of service that can be carried out in the as-yet undefined areas of health services, fire and rescue services, education services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel and border security. The various problems with this legislation were well-canvassed by our speakers. But as Eddie Dempsey powerfully reminded us, the logical upshot of this Bill is that workers who want to strike and thus do not want to work will be forced back into their workplaces so to maintain the requisite “minimum service levels”.
For many workers, this will be a heartbreaking and impossible moment. They will be forced to cross picket lines and return to work for an employer with whom they have an outstanding dispute. But it is important to note how this will affect those on the picket lines as well. Those whose work is not necessary for the provision of a minimum service will find themselves on the picket line facing colleagues who they know do not want to work but are being forced to by the legislation. In large workplaces, the picketer may not be able to distinguish between someone forced into work from someone choosing to work. Naturally, the symbolic force of the picket line will be heavily weakened.
These problems are just a snapshot of the types of issues workers in key industries are going to be facing as a result of these proposed pieces of legislation. This grave threat to picketing, that fundamental mode of expression and association, is just one of the many assaults on workers’ rights this government is initiating. We hope that events like ours on 28 January 2023 can help begin the process of strategising on how best we can resist this.