Secretary of State for Business and Trade v Mercer: An Unqualified Victory for the Right to Strike? – by Ioannis Katsaroumpas

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1. Introduction

In Mercer, the Supreme Court (SC) confronted a glaring hole in the statutory edifice of freedom of association and industrial action (as currently consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 [TULRCA]). Following various statutory interventions after 1971, the law protects employees from dismissal for both industrial action (s 237/238A TULRCA) and union activities ‘at an appropriate time’ (s 152 (1b) TULRCA). But, when it comes to detriments short of dismissal, protection is extended to workers only for the latter (s 146 TURLCA). A fourth protective element is thus conspicuously absent: the lack of protection for detriments short of dismissal (such as suspension) for participation in industrial action.

In its unanimous opinion written by Lady Simler, the SC resisted the construction of the missing element by means of interpretative shortcuts (either through an ordinary statutory construction of s 146 or a s 3 Human Right Acts 1998 [HRA] interpretation that requires courts to read and give effect to primary legislation in a Convention-compliant way ‘as it is possible to do so’). However, it found s 146 to be a breach of Article 11 ECHR and issued a ‘declaration of incompatibility’ (DoI) under s 4 HRA. In short, it attested the hole but passed on responsibility to Parliament to fix it.

The judgment attracted an enthusiastic reception from academics, workers and unions. In his seminal blog series on the judgment (Part 1 and Part 2), Alan Bogg argued that:

The significance of Mercer cannot be overstated. The right to strike has often lurked in the English courts like the embarrassing uncle at the family Christmas party. Following Lady Simler’s judgment, it is now recognised fully and unequivocally as a human right warranting strong legal protection by the legislature.

Unison described it as the ‘most important industrial action case for decades’. And perhaps with a slight degree of over-confidence (given that DoI do not on their own affect the validity of the law), it viewed it as meaning that bosses will ‘no longer be able to punish or ill-treat anyone who dares to take strike action to try to solve any problems at work’.

In at least two ways, the judgment is indeed historic and signals an advance in the effective protection of the right to strike. First, it is the first SC decision to make an emphatic and unambiguous finding of any aspect of the stringent UK industrial action framework as in breach of Article 11 ECHR. Given the higher domestic Courts’ general reluctance to seriously engage with Article 11 in the context of industrial action, this is no mean feat. Secondly, Mercer issued the first DoI in the employment context. This is also significant. DoIs are generally treated by the Courts as a precious commodity to be devalued by its use. Hence there is plenty to celebrate.

However, at the risk of dampening the enthusiasm, this article calls for some caution by arguing that the judgment also contains some darker sides that could call into question a narrative of an unqualified victory. This is not only because DoIs do not affect the validity of the law. More fundamentally, it is because a closer reading of the SC reasoning exposes an alarmingly minimalist construction of Article 11 in ‘horizontal’ cases (that is when the state does not act as an employer), treating any restrictions on industrial action as invariably not affecting the core of trade union activity. This in turn risks setting a very low bar for future challenges to other problematic aspects of the stringent UK industrial action law.

This article proceeds as follows. After discussing the case background [Part 2], it examines the SC’s four key findings:

1. Refusal of ordinary construction (first shortcut) [Part 3];
2. Incompatibility with Article 11 [Part 4];
3. Refusal of a Convention-compliant interpretation (second shortcut) [Part 5];
4. and the issuance of a DoI [Part 6].

The article concludes by offering an overall assessment of Mercer’s significance for Article 11 constitutionalisation of the right to strike and the prospect of redemption through the UK political constitution.

2. Background

Before occupying ourselves with the legal intricacies, it is important to appreciate the larger picture. The case originated in the care sector involving domestic workers, characterised by acute power imbalances and heightened vulnerability to exploitation and invisibility (see Natalie Sedacca 2022).

Ms Mercer was employed as a support care worker. As a Unison rep, she sought to exercise collective agency by contesting the reduction of ‘top-up’ payments for sleep-in shifts (which the SC in Mencap found not to attract a minimum wage entitlement) by organising industrial action and speaking to the press to gather visibility. In this context, she faced sanctions from her employer. She was suspended (with pay but with no overtime that she would otherwise have worked) and thus removed from the workplace during the industrial action. It is reasonable to assume that given her leading role in the action, this would have also had a chilling effect on other workers’ willingness to take part in this (and future) industrial action(s).

Ms Mercer complained to an Employment Tribunal (ET) under s 146 TULRCA. The employer disputed that the purpose was to ‘prevent or deter’ her from taking part in union activities within the statutory definition by claiming that the reason was that she abandoned her shift and spoke to the press without permission thus ‘bringing the company into disrepute’. No conclusion was reached on the facts and the case proceeded on ‘assumed’ facts to settle the legal issue. Reversing the ET finding that s 146 does not cover industrial action participation, the EAT used s 3 HRA to read in the ‘appropriate time’ definition an additional section (c) [‘a time within working hours when he is taking part in industrial action].

At this point, the Government took over the employer’s case by launching a successful appeal to the Court of Appeal. While the latter issued a speculative statement that the ‘absence of protection may put the UK in breach of Article 11’ (para 70; emphasis added), it held that it could not make a definitive determination on the case facts. It also refused the possibility of a Convention-compliant interpretation or declaration of incompatibility. This is how the case reached the SC (with Ms Mercer represented by an outstanding team composed of Michael Ford KC, Stuart Brittenden KC and Alan Bogg on his SC debut). On this long journey, one should express utmost gratitude to Ms Mercer for her persistence. She is a hero performing the work neglected by generations of politicians and ultimately without any concrete individual redress for the harm she suffered. In essence, it is an example of an individual mobilising a process of a systemic-constitutional review mostly aimed at prospective rather than corrective justice.

3. Avoiding the First Shortcut: Rejecting an Ordinary Construction of s 146 to cover industrial action

The first shortcut to fix the statutory hole is by means of an ‘ordinary construction’, obviating the need for engagement with ECHR/HRA. For the SC, no such route is available. Here the general thrust of the SC’s reasoning is underlaid by what is in essence a lex specialis constitutional argumentation: from the existence of a specific provision on dismissal for industrial action, we can infer a Parliamentary intention to exclude industrial action from the scope of s 146. For this finding, the Drew EAT decision (Drew v St Edmundsbury Borough Council [1980] ICR 513) is treated as a key authority that provides a settled background. Drew held in the context of dismissal that an interpretation of union activities as covering industrial action would impermissibly entail that an individual dismissed for industrial action participation could ‘fall under both sections’ (now ss 152 and 237/238a TULRCA) (para. 44). In the SC’s view, this could not have been the legislative intention. As Drew puts it (and the SC quotes with approval), this would mean that an ‘employee dismissed for engaging in industrial action at an appropriate time could bring a claim for unfair dismissal under section 152 and thereby avoid the carefully constructed regime giving limited protection for dismissals in sections 237 to 238A’ (para 47; emphasis added). The SC’s reasoning can be defended as following a well-settled conventional judicial path that prevents the anomaly of an employer being legally able to dismiss striking employee but not capable of subjecting them to detriments or of dismissing striking workers.

However, three points can be still made here in response. First, the SC suggests that an expansive interpretation of union activities would create an impermissible overlap between the two provisions. But a closer look reveals that it focuses more on the asymmetry (that is difference) regarding the extent of restrictions between the two regimes. For the SC, the problem arises more because of the more restrictive nature of s 237/238A rather than of the overlap itself. This is an interesting move. It seemingly assigns a dual restrictive effect on the web of industrial action restrictions, such as that automatically unfair dismissal protection for participating in lawful industrial action is available only for twelve weeks (it can be extended only under certain conditions). Besides their primary restrictive effect, they are weaponised to constrain the expansive interpretation of s 146. It thus kills two birds with one stone. A problem with this part of the SC’s reasoning is that most of the analysis focuses on s 152 and s 2378a regarding dismissal rather than s 146. The opinion seems to assume that ss 146 and ss 152 should be interpreted as having an identical meaning, but justification features much later in the judgment (para 107).

Secondly, the SC assigns substantial interpretative weight to the statutory definition of ‘appropriate time’ as meaning outside working hours or within those hours where the employer consents (s 146(2). This phrase is used not in terms of its ordinary meaning but as evidence to infer the Parliamentary intention to limit its effect ‘to activities which are not inconsistent with the performance by workers of primary duties owed to the employer’ (para 45; emphasis added). The reasoning is that industrial action generally takes place outside working hours hence the Parliamentary intention was to exclude any form of industrial action from s 146.’

However, the opinion seems to make a leap directly connected with the limited scope of ordinary construction. It starts by holding that ‘read in isolation and as a matter of ordinary language the phrase ‘‘activities of an independent trade union’’ in section 146(1) of TULRCA is apt to include participation in, or the organisation of, lawful strike action’ (para. 44). But this does not include the ordinary construction of the statutory definition of ‘appropriate time’ offered by s 146(2). If one entertains the thesis that the definition substitutes the phrase ‘appropriate time’, then one could argue that industrial action during working hours or without the employer’s consent is excluded because of ordinary interpretation and not because of Parliamentary intention. Such a joint ordinary reading of the phrase in conjunction with its definition would have had a critical practical consequence. It could at least have salvaged forms of industrial action taking place outside working hours, such as refusing to work voluntary non-contractual overtime. Indeed, what the SC does is to treat the statutory definition as having a probative value in determining a Parliamentary intention that is far more capacious (excluding any form of industrial action) compared to the scope afforded by an ordinary construction of the statutory definition (which is limited to activities during working hours and without employer’s consent). And this is registered in the ‘inconsistent with the performance by workers of primary duties owed to the employer’ formulation which essentially seeks to import the restrictive common law approach of ‘primary duties’ during industrial action (such as in relation to ‘work-to-rule’ strikes, wage deductions etc) as interpreted by the courts.

Thirdly, it should be noted that the SC’s consequential thesis is well-made and persuasive. The argument treats the potential anomaly of an expansive interpretation as a reason for deducing Parliamentary intention to the contrary. However, one could also recall the House of Lords Eastwood judgment in the context of the ‘Johnson Exclusion Zone’ (damages for wrongful dismissal) where Lord Nicholls acknowledged that it could produce the ‘strange resul[t] of an employer being better off ‘by dismissing an employee than suspending him’ (para. 32) (because in the former case the statutory cap will apply unlike the latter). But this was not sufficient to deduce a Parliamentary intention not to exclude ordinary common law damages for the manner of dismissal from the enactment of an unfair dismissal statutory framework and statutory caps. Granted, the two contexts bear contextual differences. Mercer concerns the interpretation based on two statutory provisions of a single statute while Eastwood operates at the common law/statute interface. But it is instructive how a potential anomaly (or ‘strangeness’) seems to be decisive only when it is against employees/workers in these two instances.

4. Finding a breach of Article 11: Victory….but with qualifications (‘dark sides’)

Following the cases of Demir and Baykara recognising collective bargaining as an ‘essential element’ of Article 11, the ECtHR has changed previous jurisprudence to recognise industrial action as a ‘clearly protected’ (RMT v UK, para 44) element of Article 11 but has refused on whether it is an essential element (ibid). States can justify an interference on Article 11 by demonstrating a legitimate aim and proving that it was ‘necessary in a democratic society’. The latter invites a multi-factorial assessment that includes identifying a corresponding ‘pressing social need’, showing that reasons were ‘relevant and sufficient’ (see RMT v UK para. 83) and proportionate and depending on the recognition of a ‘margin of appreciation’ demonstrating that ‘fair balance’ has been struck between competing interests. For assessing the extent of the margin of appreciation, the ECtHR deploys the core/accessory distinction (see Alan Bogg and Ewing, ‘The Implications of the RMT case’ (2014) 43(3))

In Mercer, the SC found a breach of Article 11 despite the recognition of a wide margin of appreciation to the UK. For this, the SC advanced a reading of preceding ECtHR case-law as establishing different state duties in ‘vertical’  (that is, when the State acts as an employer) and ‘horizontal’ relationships (that is when the state acts as a regulator of private relationships) (see further Bogg 2024). In the former cases, even a ‘minimal’ sanction is likely to ‘involve a breach of Article 11’ (para. 76). However, in horizontal situations, states are granted a wider margin of appreciation in striking a fair balance. This is a dubious assessment since, as Mercer’s lawyers persuasively argued, there is no indication of such a distinction in Strasbourg’s case-law. The SC here adopts a minimalist reading of Article 11 jurisprudence.

The gist of the SC’s assessment is contained in the following paragraph which is likely to become one of the most widely quoted parts in labour law scholarship for years to come:

Moreover, in my judgment the right of an employer to impose any sanction at all short of dismissal for participation in lawful industrial action nullifies the right to take lawful strike action. If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves. Nor is it clear what legitimate aim a complete absence of such protection serves. In the context of the scheme of protection that is available, it is hard to see what pressing social need is served by a general rule that has the effect of excluding protection from sanctions short of dismissal for taking lawful strike action in all circumstances. Seen in this way, section 146 of TULRCA both encourages and legitimises unfair and unreasonable conduct by employers’ (para. 89; emphasis added).

There is plenty to unpack here. Let us begin with the positives for the effective protection of the right to strike. First, the SC does not see any clearly defined aim in the ‘complete absence of protection’ for sanctions short of dismissal for industrial action participation. This makes the identification of any ‘pressing social need’ ‘hard to see’(para. 89).  Indeed, a peculiar feature of this particular absence (and critically different to other strike restrictions) is that there is no evidence (or record) of a positive consideration of a provision on protecting workers from sanctions short of dismissal for industrial action participation by the Government or Parliament. This, in turn, renders s 146 vulnerable to Article 11. But by the same token it also makes it genuinely exceptional. The SC could have confined itself to this finding. In the absence of a pressing social need, the ‘necessary in a democratic society’ element of the proportionality test fails. This could have given an escape route to the SC without having to discuss margin of appreciation or issues of fair balancing or at least qualify it as a discussion in the alternative.  But this route was not taken. Instead, the opinion proceeded to discuss the margin of appreciation which was not legally necessary.

Secondly, the statement that ‘if employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves’ is a welcome rights-based judicial valorisation of the significance of the individual protections for the right (though with the caveats mentioned before). This also applies to the statement that s 146 ‘encourages and legitimises unfair and unreasonable conduct by employers’ (para. 89). Barring its function in the finding of DoI (see Part 6 below), what is interesting about this quote is that it deploys free-floating words that do not directly transcribe to standard statutory or judicial terminology. What does it mean for the conduct to be deemed ‘unfair’ and ‘unreasonable’? The same applies for ‘legitimising’. What are the relevant legal standards to which these words are attached? And why did the opinion not use the much clearer word ‘permitting’? In the ILO parlance, the term legitimate industrial action has a distinct meaning (as a term to be distinguished for lawful industrial action under domestic law) but no indication exists of any intention for the ILO to be a source of inspiration here.

Before entering the darker side of the judgment, it is important to highlight a fundamental ambiguity in the previously quoted paragraph. On the one hand, the SC states that the ‘right of an employer to impose any sanction at all short of dismissal for participation in lawful industrial action nullifies the right to take lawful strike action’. It is tempting to put the accent on ‘nullifies’. But I suggest that equal attention should be devoted to the adjective ‘any’. This is because it harbours a pernicious regressive effect. Does this imply that some sanctions may not nullify this right? And the SC cannot claim wage deductions as an example of permissible sanctions because it already rejected their qualification as sanctions/detriments within the statutory definition. On the other hand, the next sentence appears to imply that the threat of any sanctions will dissolve the right because the Court talks about employees taking ‘strike action by exposing themselves to detrimental treatment’. Which is right? What if the law allows some sanctions (disciplinary proceedings) but prohibits others (refusal of voluntary overtime)? The reconciliation of these sentences is difficult unless one is willing to entertain the linguistic absurdity that the right is dissolved but not nullified.

And now we enter the ‘qualified victory’ aspect (or ‘dark side’) of the judgment. Indeed, it is possible to perceive the judgment as a victory since it found an Article 11 breach despite the recognition of a wide margin of appreciation. It proves, at least that, the margin of appreciation does not conceal interferences under a cloak of invincibility. However, the dark side becomes manifest at the moment of reversing the argument. What does it tell us about Article 11 that the SC concludes that the existing legal framework ‘dissolves’ the right but still applies a wide margin of appreciation? How odd that the right to strike is not capable to reach the ‘core’ of Article 11 even in its dissolution? This is a spectre underlying the judgment that may bite in future litigation concerning other aspects of industrial action law characterised by some elements of a positive (no matter how inadequate or superficial) Parliament consideration, a government presentation of a legitimate aim (or ‘pressing social need’) and at least a putative effort to balance competing interests.

This danger becomes even more substantial if we consider the SC’s dismissal of the following key points advanced by Mercer. This involves the rejection of a reading that distinguishes ‘essential’ activity (for which the ECtHR has refused to state whether it includes primary industrial action) from ‘core’ activity used to apply a more limited margin of appreciation. The SC reads the ECtHR judgment as using ‘‘essential” and ‘‘core’’ interchangeably’ and stressed that ‘it declined to hold that strike action is core’ (para. 69). However, the ECtHR refusal to hold that primary strike action (in a horizontal situation) is a core right by virtue of which is not necessary is turned into a definitive pronouncement that according to ECtHR jurisprudence it ‘is not a core right’ (para. 81).

Moreover, the SC rejected an important legal point arguing for the significance of individual sanctions by drawing the core/non-core distinction on the grounds ‘not on which union rights are involved, but on whether the detrimental acts are targeted at individuals, so that individual sanctions on trade union members and officials strike directly at the core of article 11’ (para. 69; emphasis added). It found that ‘this does not reflect the clear analysis of the Strasbourg court in RMT (and elsewhere), where no relevant distinction has been drawn between individual and collective sanctions’ (para. 69). This is a missed opportunity. A finding to the contrary would have been helpful in addressing potential dismissals of employees in the context of minimum services even if an industrial action still takes place on the basis that they are ‘targeted’ at individuals. ‘Targeted’ also avoids the risks of an effect-based approach as it does not require an assessment of the effectiveness of the strike action.

Hence the SC in pronouncing the breach it seems to set a quite low bar for challenging other industrial action legislation. Such reasoning risks creating an overtly minimalist construction of Article 11, bordering on an in extremis prohibition applying only in exceptional cases. This could set a problematic precedent. It is hard to find any other provision of UK strike law that is as exceptional as s 146 in that it is an obvious legislative oversight featuring no relevant debates and any express invocations of public interest by the Government.

At this point, another problematic aspect of the SC’s reasoning warrants attention. As part of the Article 11 analysis, the SC argues that ‘since protection against dismissal in section 238A of TULRCA expires after the industrial action has been going for 12 weeks, it would be surprising if at that point the employer could dismiss employees taking lawful strike action with impunity but could not lawfully impose any lesser detriment on workers participating in a lawful strike’ (para. 81; emphasis added). This is used to challenge an understanding of Article 11 as requiring protection from any detriment. Besides the lack of clarity over the significance of the use of the term ‘surprising’, it is unclear why the SC uses domestic law as a legally pertinent material to determine the content of Article 11 which is autonomous (and not for example in the context of s 3 interpretation).

5. Avoiding the Second Shortcut: Rejecting a Convention-Compliant Interpretation (s 3 HRA)

After finding a breach of Article 11, the opinion turns to the issue of remedies. The first remedy to consider is s 3 HRA which requires the Courts to read and give effect to primary legislation in a Convention-compliant way ‘as it is possible to do so’. This is a strong interpretative duty ‘of an unusual and far-reaching character’ (Ghaidan v Godin-Mendoza [2004] UKHL 30 para. 25) since it moves beyond the ordinary bounds of expansive/restrictive interpretation ‘to require a court to read in words’ that have the effect of changing the meaning of effective legislation (para. 32). Accordingly, Ms Mercer proposed the inclusion in s 146(2) of the following sub-paragraph (c): ‘in respect of a detriment short of dismissal, a time within working hours when he is taking part in protected industrial action within the meaning of section 238A (1)’.

However, the SC dismissed this possibility by invoking two limits. The first can be termed as the indeterminacy limit. For the SC, there is no ‘single, obvious legislative solution that will ensure compliance with article 11 while at the same time maintaining an appropriate balance between the competing rights of employers and their workers in this politically and socially sensitive context’ (para. 102). To reject this argument, the opinion needs to dismiss the suggestion that there shall be universal protection from all detriments which if accepted may entail a singular solution (if based on lawful industrial action). It does so by stating that it cannot ‘rule out there might be some circumstances where it would be permissible for a private employer to impose a sanction of some kind for participation in lawful industrial action (which may take many forms) (para 103)’, citing reduction of a discretionary bonus or removal of a non-contractual benefit as potential examples, ‘irrespective of the application of the “sole or main purpose” test (para. 103)’. The judicial reluctance to accept that the law shall provide universal protection for any detriment for lawful industrial action participation is notable given that s 146 contains the qualification that the detriment should be to ‘deter or prevent’ union activities. Indeed, the conclusion that the imposition of any sanctions offends the right to strike seems to naturally follow the Court’s statement that ‘if employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves’ (para. 89). ‘Dissolution’ is an offence of a right by definition.

In further support of the plurality of Convention-compatible options used to substantiate the indeterminacy limit, the SC submits that any drafting will require consideration of whether the new provision should mirror ‘the complex but limited protection against dismissal on grounds of taking industrial action contained in sections 237 to 238A of TULRCA’ (para. 104). The 12-week restriction makes another appearance. This time it challenges the s 3 interpretation. The SC also highlights the need to choose between granting the right to ‘workers’ (as s 152) or ‘employees’ (as 237/238a). As in previous stages of the reasoning, the SC weaponizes the asymmetries in the statutory construction for preventing a protective construction of s 236 through the indeterminacy limit. Ultimately, the SC concludes that using s 3 would be:

…tantamount to judicial legislation. It fundamentally alters the scope and structure of the rights conferred by TULRCA, re-drawing the balance between workers’ and employers’ rights. There is no formulation that does not involve making a series of policy choices that may have far-reaching practical ramifications. This goes beyond the permissible boundary of interpretation (para. 105).

Besides indeterminacy, the Court argues that a s 3 construction as suggested by Ms Mercer would contradict a fundamental feature of the legislation and go against its grain (thrust). Interestingly, the SC rejects a purposive human rights interpretation of the ‘thrust of the legislation’ as ensuring compliance with Article 11 and ‘as always protecting freedom of association through protecting the right to form and join trade unions’ (para. 106). Such a construction is found to be ‘too general an approach in circumstances where Parliament has repeatedly and consistently legislated to restrict protection against detriments to cases where workers have undertaken trade union activities at “an appropriate time” as defined’ (ibid).

Even more problematically, the opinion adopts a structuralist-formalist approach to the identification of the thrust of legislation by assigning determinative weight to the chapter division in a consolidated statute (for this point in the context of the Court of Appeal judgment in Mercer see Keith Ewing 2023).  The SC follows similar argumentative patterns to previous parts. It begins with the distinction in s 146(2) between working time and non-working time interpreted as meaning that it is ‘inconsistent with the performance of the primary duties owed by the workers concerned to their employer’ (para 105). It then moves to section 152 by arguing that it ‘cannot be interpreted as extending to encompass protection for participation in lawful industrial action, as to do so would make the Part V provisions otiose and unnecessary’ (para 105). From there, it concludes that the existence of protection for dismissal because of strike action in Part V means that a s 3 construction of s 146 ‘would be inconsistent with a fundamental feature of the legislation that treats dismissal for industrial action differently from dismissal for other trade union activity’ (para. 107).

At least, the Court here deals more explicitly with the counter-argument that s 146 can be interpreted differently from s 152 since unlike the latter it does not have any counterpart in terms of protection from detriment short of dismissal for strike action. The Court refutes this escape route by construing s 146/s 152 as ‘sibling Acts’ and seeing no reason to depart from the ‘general presumption that the same words used in different sections of the same statute have the same meaning’ (para. 108). For the Court, such a construction would ‘ignore the internal coherence of the legislation’ (ibid and thus amount to ‘significant departure from a fundamental feature of the primary legislation concerned, giving rise to possible ramifications that the court is ill-equipped to evaluate’ (ibid) The risk is that a broader protection may be provided to worker subject to a detriment short of dismissal for industrial action participation than to employees for dismissal for the state action (ibid).

Overall, the SC advances an overtly formalistic-schematic approach to the ‘grain of legislation’ limit which is mixed with an interpretation of the shared history of s 146/s 152, thus making s 136 look more like a Siamese twin that cannot be separated from his sibling to be more capacious and venturous.

6. Issuing a Declaration of Incompatibility: A New Remedy for Industrial Action Law

‘Declarations of Incompatibility’ (DoI) are a discretionary ‘open remedy’ available to the courts pursuant to s 4 HRA. Through DoI ‘courts communicate their conclusion that human rights have been violated but instead of devising an executory order or invalidating legislation, they invite the other branches of government to decide how to address the identified human rights problem’ (Aruna Sathanapally 2012, 3). They neither affect the validity of the legislation nor establish any obligations to Parliament, procedural or substantive.

In issuing the DoI, the first in the employment context, the SC declined a formalistic argument advanced by the Government on the grounds that it is not available because incompatibility is sourced not in a single provision offending Article 11 but in a lacuna in the law. The SC escaped this limit by taking a functional approach to s 146. It found the latter to be the ‘only provision which limits the common law in this context and has the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the UK in breach of article 11’ (para. 116). And at this point, the peculiar sentence finding s 146 as ‘legitimising unfair and unreasonable conduct’ acquires some legal resonance as it is used to ground the ‘intrinsic incompatibility’ thesis of s 146.

Finally, the SC regards the existence of various Convention-compliant policy choices as a reason for issuing (rather than refusing) a Declaration (para. 102) since it invites Parliament to make the inquiry as the competent institution. This is a relief. An alternative conclusion that would have accepted the CA’s position on this point would have meant that the multiplicity of policy choices would have been a triple-used card: first to defeat the narrow margin of appreciation, second as a limit to the s 3 HRA construction and finally as a reason against issuing a DoI.

7. Mercer and Article 11 Constitutionalisation: Redemption by the Political Constitution?

What is the significance of Mercer for the constitutionalisation of the right to strike anchored in Article 11? I suggest that its reading as an unqualified defeat for effective statutory protection of the right to strike would be as deceptive as that of an unqualified victory. Following decades of speculation and anticipation, a SC decision found an aspect of UK industrial action law in breach of Article 11. This is a cause for celebration. Such a critique would not have been possible without the ECHR and HRA. At the very least, the days where Article 11 was an irrelevance for collective labour rights or at best containing a promise for a ‘balanced constitution’ (Keith Ewing 2001) seem behind us. In essence, Mercer confirms the attachment of UK strike law to Article 11. It leaves us only wondering about the strength of its gravitational pull.

However, this article also urged some caution by identifying some darker sides of the judgment. Under the protective fireworks of a finding of a breach and of issuing a DoI, the SC may have laid down some juridical landmines for future cases against other aspects of UK strike law which does not share the exceptional feature of the absence of protection for actions shorts of dismissal for industrial participation that is obviously as a clear legislative oversight without a clearly defined invoked public interest. In addition, the judgment draws on various restrictions contained in the overtly strict UK industrial action law as a reason against an expansive reading of s 146 thus granting them a secondary restrictive effect. This minimalist (or in extremis construction) construction of Article 11 for industrial action carries the real risk (which scholars in countries with domestic constitutional protection of the right to strike are fully -and often painfully aware) of nominalism. This is to drain the right of content in the guise of nominally protecting it. To make it an empty shell. In at least some respects it is arguable that this could be worse than the absence of nominal recognition because its negation is often couched in intricate legal jargon and obscure concepts (such as the deployment of core/non-core distinction for the margin of appreciation).

However, one cannot but feel sympathy for the judges deciding this case. It is an index of collective political failure and an indictment of the absence of a systematic review of the industrial action framework that a litigant had to suffer the experience of sanctions to draw attention to an obvious hole in the statutory protection of the right to strike. Regardless of one’s assessment of the SC’s reasoning, the decision can be read more consistently in constitutional terms as animated by a clear effort to facilitate democratic dialogue and inter-institutional interactions (see Alison Young 2017) through inviting Parliament to offer redress.

This move may elicit mixed feelings for labour law scholars. While in recent years there has been a more positive approach to the judicial protection of labour rights as human rights (see Virginia Mantouvalou 2013 ), when the HRA 1998 was enacted many academics were sceptical about human rights and DoIs were seen as a judicial encroachment on Parliament and the political constitution(see Keith Ewing 2001). In some ways, judges may align with this sentiment by hoping to initiate a Parliamentary discourse rather than suggesting any concrete solution. Thinking beyond labour law, they may also want to avoid encouraging a perception of ‘judicial solutionism’ where the Parliament can avoid tackling concrete human rights issues in the safe knowledge that judges will come up with the solution (and then often become Government scapegoats). It is not improbable that the imminent prospect of a Labour Government may have played a part in the SC’s approach. However, if a new Government decides to legislate to rectify DoI a danger exists that Article 11 will be treated as a ceiling rather than a floor (for example providing protection of detriments for industrial action only to union members as found to be required by Article 11).

Mercer is a historic judgment that brings UK law in contact with the reality of constitutionalised labour rights. While suggesting that constitutional rights may not be a magic wand for effective protection of the right to strike, Mercer also testifies to the value of Article 11 recognition. None of the negative aspects of the statutory framework would have been prevented in Article 11’s absence. And none of the judgment’s positive aspects, at least as a form of a human rights-based critique of the existing framework, would have appeared. Mercer makes a complex reading. It is neither an unqualified victory nor an unqualified defeat. It is drenched in caveats.

The critical question now is whether the UK political constitution can provide the much-needed redemption against neo-liberal de-construction not just in relation to Article 11 but more broadly with regards to securing an effective protection of the right to strike. This is something we will find out sooner or later, especially if the July 4 elections return a Labour Government as anticipated. We just need to focus our attention on the House of Commons rather than the Supreme Court. This is what the SC judges asked us to do in Mercer.

Will the new Parliament pick up the baton?

The author is grateful to Alan Bogg and Danielle Worden for their comments on the draft. The usual disclaimer applies.

About the author:

(Suggested citation: I Katsaroumpas, ‘Secretary of State for Business and Trade v Mercer: An Unqualified Victory for the Right to Strike?’ UK Labour Law Blog, 7 June 24, available at https://uklabourlawblog.com/)