At the beginning of this year I suggested that there had been signs of a ratcheting up of interference of union activities commenting that there “are worrying signs that should a copper turn up on a picket line their agenda should not be automatically assumed to be as an independent and fair-minded enforcer of the peace.” Part of the reason was the experience of the Metropolitan Police arresting a union official earlier this year on dubious grounds and in apparent collaboration with the employer (an NHS Trust).

For well over 100 years the right of a union to picket has consistently been an area upon which both employer’s and the state seek to interfere with. For example, in the infamous House of Lords decision in the Taff Vale case the ability of a trade union to picket in support of a strike was effectively obliterated. Graham Lockwood (in his chapter ‘Taff Vale and the Trade Disputes Act of 1906’, in The Right to Strike: From the Trade Disputes Act of 1906 to a Trade Union Freedom Bill 2000) summarised the decision as follows: “The effect of Taff Vale is summarised by Lockwood: “The Taff Vale Judgment of 1901 placed considerable legal restrictions in the path of would-be strikers. It meant that strikes were legal, but all forms of picketing, necessary to make the strike effective, were not.”

The risk of renewed restrictions on a union’s right to picket is presumably behind the decision of the Unite Union to launch a Judicial Review (JR) to maintain the right to strike under current coronavirus legislation. As Unite explain “The case emerged as a result of Unite members who were on strike at Optare bus factory in Sherburn in Elmet last Friday (6 November) and who were undertaking socially distanced picketing, being moved on by the police and warned that if they returned they would be issued with penalty notices for breaking lockdown rules.”

Unite’s case was due to be heard today but the hearing was vacated after the government conceded that the right to picket should be maintained under the Coronavirus emergency legislation. There has been no formal court judgment confirming the outcome but it is clear that Unite have been wholly successful in their challenge.

Howard Beckett, a Unite assistant general secretary released a statement saying

This is a vital victory for the entire labour movement.

The right to picket is fundamental and is one of the few actions that workers are legally entitled to use following a lawful ballot for strike action. Without the right to picket the very essence of the right to withdraw their labour is undermined.

Unite’s members at Optare were holding a legal picket and abiding by strict social distancing rules. They had been told their workplace was safe for them to continue working, yet the police claimed that a picket outside the workplace contravened the lockdown rules. The decision by the police to break up that picket was wrong and the government has now conceded it was wrong.

We have seen opportunistic employers take advantage of this crisis with “fire and rehire”, seeking to have workers pay for this crisis with their terms and conditions. For however long this crisis lasts this victory on picketing means that we retain the ability to hold bad bosses to account.”

Beckett is absolutely right that this is an important reiteration of the fundamental right of a union and its members to hold bad bosses to account. The flip side of the decision is it seems very likely that the actions of North Yorkshire Police amounted to an infringement of the striking worker’s freedom to associate and hopefully human rights claims on behalf of those workers prevented from undertaking union activities by the state will be pursued in due course by Unite.