Border Force anti-strike law: PCS gets go-ahead for legal challenge

High Court grants permission for judicial review of minimum service levels regulations in the Border Force
PCS members protesting during a Border Force strike in February 2023. Photo: Vuk Valcic/SOPA Images via ZUMA Press Wire

The PCS union has been granted permission to pursue a judicial review of anti-strike legislation in the Border Force.

A substantive hearing will take place later in the year after the High Court gave the legal challenge the go-ahead last week.

The Strikes (Minimum Service Levels) Act 2023, which passed into law last July, gives some employers new powers to impose minimum service levels when workers lawfully vote to strike. Regulations came into force in December enabling these employers to compel specific staff to work during strike action. Staff who do not comply can be sacked.

PCS is using the judicial review to challenge the use of the legislation within Border Force, but minimum service levels can also be imposed for rail and ambulance services.

Ministers have argued that the regulations will "protect the lives and livelihoods of the British people".

But the union, represented by the Trade Union Law Group at Thompsons Solicitors, is arguing that the law infringes Article 11 of the European Convention on Human Rights, which safeguards the right to form trade unions and take industrial action.

The legislation came after a tumultuous few years in which a range public services have been hit by industrial action spurred by disputes over pay and working conditions. Border Force officials were among those taking part in large-scale action across the civil service by PCS over pay, conditions and planned job cuts in 2022 and 2023. In March, staff at Heathrow voted to strike over proposed changes to shift patterns, but the walkout was suspended to allow for further negotiations.

The judicial review could be the first of multiple legal challenges to the strike-curbing legislation, as the Trades Union Congress has pledged to provide support for any union or worker who is sanctioned by the laws, and to mount legal challenges. 

When PCS announced it was seeking a judicial review in January, TUC general secretary Paul Nowak said the congress “and the whole union movement will stand with PCS every step of the way with this legal challenge”.

“This case is just the beginning. We will use every lever at our disposal to fight these cynical laws,” he said, describing the legislation as “unworkable”.

PCS general secretary Fran Heathcote said: "As has been their traditional role, a Conservative government is once again attacking trade unions. Our members in the Border Force took highly effective strike action last year which helped win serious concessions from the government. The government is therefore now effectively attempting to ban them from taking strike action through this draconian legislation.

“PCS will not stand by and allow them to erode our members' rights and freedoms and we welcome the court’s decision to allow our claim to proceed to judicial review."

A government spokesperson said: "Our priority is to maintain a safe and secure border that provides an efficient experience for the millions of passengers who pass through it every year.

"The new laws ensure an appropriate balance between the right to strike while protecting our borders and mitigating disruption, as the public would expect.

"It would be inappropriate to comment further whilst there are ongoing legal proceedings.”

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