You were perhaps one of the half million of us who marched on 26 March on the TUC’s Day of Action in protest against the coalition government’s savage austerity policies. Did you, like me, fail to reflect on why the march took place on a Saturday rather than a working day? It may of course have been because the TUC wanted to avoid adverse media criticisms or disrupting the economy etc. But it may well be that the TUC was conscious that employed trade unionists would have taken part on a week-day in defiance of current trade union law which prohibits strike action which may have a political motive (as well as ‘secondary’ and solidarity strikes).

The ban on political strikes certainly inhibited the TUC from joining the European TUC’s European Day of Action on 29 September 2010 in protest against the austerity measures adopted by almost all EU member states and by the EU itself. Hundreds of thousands of workers across Europe left their work and took part. But 29 September was a Wednesday and the TUC decided not to call on British workers to join their European comrades.

Now in a pamphlet from the Institute of Employment Rights, entitled Days of Action (which has a nice Ken Loach feel to it), Keith Ewing and John Hendy challenge the orthodox view that a Day of Action, or political strikes, taking place on a weekday, would be unlawful. Ewing, an academic lawyer at King’s College, London, and Hendy, a barrister, have for years championed the cause of trade union and workers’ rights in our remarkably hostile courts. (Ewing sets out the shocking legal saga in Trade Unions, Freedom of Association and the Right to Strike, a forthcoming Democratic Audit paper.)

They argue that recent jurisprudence in the European Court of Human Rights has turned the attitude of the British courts on its head and conclude that “such a call [for a Day of Action] and participation in the action should be protected by Article 11 of the European Convention on Human Rights and Fundamental Freedoms” . Given that the government’s refusal to re-consider its policies will give rise to more industrial disputes and demonstrations, marches and rallies, it is likely that non-attendance at work will be an incidental or deliberate consequence of the latter forms of protest.

Ewing and Hendy go on to spell out why they believe that these actions should be protected in British law. Their view depends on the rulings and statements in recent cases by judges in the European Court. Anyone who is wondering why the Conservative-led coalition is seeking to “reform” the Court should read on!

The reasoning of the authors is detailed and pretty complex. I think that the core of their argument lies in two key cases where the European Court has ruled that the right to bargain collectively and to take collective action are protected under Article 11 of the European Convention – which protects freedom of association; and that Article 11 is violated by bans on the exercise of the right to strike and by penalties on workers. The Court has gone further however, ruling that the substance of the right must meet the standards set by the International Labour Organisation and that any restrictions on that right will be permissible only if they are permissible under the ILO Conventions.

The ILO is a long-established UN agency. Its conventions are international treaties and are binding under international law, though the UK has been found in breach of these treaty obligations in every cycle of the supervisory process since 1989. The Court’s rulings also brought into play the provisions of both ILO Conventions 87 (which protects the right to strike) and 98 (which protects the right to bargain), and the European Social Charter which protects the right to organise and bargain collectively and to strike.

The UK courts have broadly failed in their duty under the Human Rights Act to enforce Article 11 to protect the right to strike (which one lord  justice very recently dismissed as “not much more than a slogan”). They have in recent years interpreted restrictive statutory rules on trade union balloting on industrial action in a spirit of obstructive and petty pedantry that hobbled the ability of trade unions to exercise rights that are recognised across the world as fundamental human rights.

Finally the Court of Appeal did this year overturn such decisions in a historic judgment and also stressed the importance of “various international instruments” in which trade union rights are openly acknowledged. But industrial action still remains unlawful under the common law and it remains up to judges how they interpret the statutory immunity from that judge-made law - and reconcile it with the positive human right to strike set out in the European Convention.

Ewing and Hendy observe, “It is certainly ironic that trade unions ... still have to rely on Strasbourg [i.e., the European Court] to enforce rights of political protest that were supposed to have been ‘brought home’ by the HRA”. They argue that there is now an opportunity to secure the right to strike at Strasbourg that British trade unions should seize, given that the prospects in the British courts represent an “utterly forlorn hope” – and that very soon the coalition government will be pressing the European Court to adopt a more conservative approach.

Where does liberal and centre-left opinion stand in all this? Nowhere. I am constantly astonished by the indifference of those who reckon themselves to be champions of democracy and civil liberties to the consistent denigration and marginalisation of trade unionism, which remains a major pillar of social democracy. Why do we allow a basic human right to be determined and compromised still by judge-made common law dating from the nineteenth century?