As the Southern Railway strike drags on it’s understandable that MPs should be hunting for solutions. But Chris Philp’s proposals to toughen up on disproportionate strike action are, at present, a big step in the wrong direction.
Under his proposals, first outlined on this site and which the Daily Telegraph reports will be introduced under a 10-minute rule motion tomorrow, a high court judge will be tasked with deciding whether a given strike is “fair and proportionate”.
At a time when the Government’s agenda has been thrown into uncertainty by the Supreme Court, one might expect Conservatives to be wary of laws which essentially invite the judiciary to carve out yet more constitutional territory for themselves. Yet this is precisely what the effect of Philp’s proposals would be.
Unless accompanied by very specific guidance on what constitutes “fair and proportionate” – and most likely, even then – such law would involve judges distilling a ‘just strike’ doctrine from their personal notions of what those words mean and introducing it into British law.
Whether or not the importance of the strikers’ cause outweighs the inconvenience to the public is an inherently political decision. If applied to the doctors’ strike, for example, it would effectively require a judge to decide which side was right. It’s not the proper role of judges to make that decision, and would be unfair to require them to do so.
It would be unwise, too, to presume that the opinions of any given judge will align with those of the MPs backing this bill. Unless the judiciary proved particularly hawkish it seems likely they would, absent guidance, set a high bar to banning strike action – and on any strike they allowed to proceed the Government would be automatically on the back foot.
Philp himself only goes so far as to say that the Southern Rail strike – the driving force behind the new law – would only “probably not” be permitted under it.
Further down the line, it invites the prospect of future Parliaments finding themselves once again paralysed, waiting on the judges to dole out the white hats which could effectively decide the fate of a reform programme, a ministerial career, or even a government, in accordance with a body of case law the courts have basically created from scratch.
Other proposals outlined in Philp’s article on this site, such as mandatory mediation and a skeleton service requirement, are sensible, But the need for a High Court judgement is a textbook example of a worrisome habit in British lawmaking, whereby MPs farm out political decisions to individuals and organisations who are ‘independent’ – and therefore, unaccountable to the electorate.
The judicialisation of politics is a significant part of a wider, anti-democratic trend towards rule by ‘independent’ bodies and expert opinion, and the Prime Minister’s determination to leave the jurisdiction of the European Court of Justice suggests she is alert to the problem.
Tory MPs should not try to bring the courts further into politics just as we start the long work of taking them out of it. If there is a case to be made for restricting strikes in key services, those decisions must be made and defended by people answerable to the voters.