The European Court ruled last week that although secondary industrial action in the UK was protected by Article 11 of the European Convention on Human Rights (the right to freedom of peaceful assembly and association with others), the government could ban it to protect the rights and freedoms of others.

The case, brought by the RMT, arose out of an industrial dispute in the rail maintenance sector after some union members transferred from Jarvis plc to Hydrex Ltd and the union could not call on the union members still employed by Jarvis to take part in sympathy action with its Hydrex members.

The union relied on the seminal 2008 European judgment of the Grand Chamber in Demir and Baykara v Turkey in which it had unanimously held that the case law on Article 11 was to be re-examined in the light of the decisions of the supervisory bodies of international labour standards, such as the European Committee on Social Rights and the International Labour Organisation (ILO) and practices in member states. That re-examination, and other cases that emerged at that time, strongly suggested that Article 11 protected not only the right to collective bargaining, but also the right to strike.

The Court ruled in this case, however, that the decision in Demir and Baykara should be restricted to situations of “very far-reaching interference” with freedom of association. In this case as the union had been able to call for some industrial action in the dispute, the effect on the union’s freedom of association was limited.

This meant that the RMT’s reliance on the criticisms of the UK laws by the European Committee on Social Rights and the Committees of the ILO was only to be given limited weight. The fact that the ban on secondary action also related to the social and economic policies of the UK, which the Court would only exceptionally interfere with, was a further reason to give a wide margin of appreciation to the state. The court took the fact that the ban had remained intact for over 20 years, through two changes of government, as evidence of a democratic consensus spanning a broad spectrum of political opinion in the UK. The Court therefore concluded that “overall, a fair balance was struck”; the ban on secondary action was “necessary in a democratic society” and proportionate. There was therefore no violation of Article 11.

Richard Arthur commented: “This judgment represents a change of direction for the Court after the more optimistic stance in the Demir and Baykara case. Once again, the norm seems to be a wide margin of appreciation for the state in matters characterised as economic and social policy. This is achieved, in part, by a sliding scale of rights protected by Article 11.

“The further a union is from exercising “core” rights the wider the margin of appreciation for the state. The Court’s rigour in defining not only the content of the Article 11 right, but also the circumstances of permitted interference, by reference to other international labour standards, is also diluted.

“That said, the Court does confirm that industrial action is protected by Article 11 – and that includes secondary action. It leaves open the possibility of some restrictions on the right to take industrial action not being capable of justification. It also observes that, when it comes to the regulation of industrial action, the UK is at the “most restrictive end of the spectrum”. This change of approach has been signposted by the most recent cases from the Court. However, it has to be said that the decision represents a setback for trade union rights on the international stage.”