Legislation introduced by the UK government allowing employers to replace striking staff with temporary workers has been quashed by the High Court in a victory for trade unions.
In a judgment on Thursday, Mr Justice Linden ruled that the approach taken by ministers in implementing strikebreaking regulations that took effect in July last year was “so unfair as to be unlawful, and, indeed, irrational”.
The court decision is a setback to prime minister Rishi Sunak’s broader attempt to reduce the power of trade unions at a time of widespread industrial action over below-inflation pay rises, particularly in the public sector.
The legislation made it easier for employment agencies to supply businesses and public sector organisations with staff to cover for strikers on a temporary basis, a practice that for decades had been a criminal offence.
Unions representing workers including teachers, train drivers and health staff brought a judicial review. Their legal case rested on two grounds: firstly, that ministers had failed to comply with a statutory duty to consult before introducing the legislation, and secondly that the rules violated a right to strike enshrined by human rights law.
The court’s judgment upheld the union’s complaint on the first ground, although it did not express an opinion on the second.
Ministers had argued that the change was a “modest amendment” to the law that did not “directly impinge” on trade unions’ ability to stage walkouts. They also said the government had held an “extensive” consultation into the same proposals in 2015 and that there was no requirement to rerun it.
However, the court found the government should have sought “updated views and evidence given the lapse of time, given the developments which there had been in the intervening period”.
Linden also said that Kwasi Kwarteng — who as then business secretary introduced the change last year — had failed to adequately assess responses to the consultation in 2015.
“The secretary of state did not even consider the information available as to the responses to the 2015 consultation,” the judge said.
Unions had warned that the legislation would worsen industrial disputes and endanger public safety if poorly trained agency workers filled critical roles.
Paul Nowak, general secretary of the TUC, the umbrella body for the UK labour movement, said the government had “railroaded through this law change despite widespread opposition”.
Sharon Graham, general secretary of Unite, said the judgment was a “total vindication for unions and workers”, adding: “This ill-thought out, divisive legislation must be consigned to the dustbin of history.”
The UK government said it was “disappointed” with the ruling, noting that it “believed the decision to repeal the ban on agency workers covering strikes complied with our legal obligations”. It added that it would “consider the judgment and next steps carefully”.
As part of broader efforts to curb strikes, the government this year announced new proposals that would impose minimum staffing levels in large parts of the public sector during walkouts.
Ministers have described the legislation, which is soon expected to become law, as a “proportionate” way of ensuring people can use public services during stoppages, but union leaders have labelled it “draconian”.
Sir Keir Starmer, leader of the Labour party, which receives large donations from the big unions, has promised to reverse the reforms if he becomes prime minister after next year’s general election.