This weekend’s nurses’ strike will be called off after the High Court rules part of the strike was unlawful.
Tens of thousands of nurses had planned to end their 48-hour strike at 8.00pm on May 2 but will now end their strike at midnight on May 1 after the government brought an action against the Royal College of Nursing.
Health Secretary Steve Barclay said he was forced to sue after NHS Employers, which represents hospitals, asked him to look into the legality of the strike. His lawyers successfully argued that the strike mandate obtained on November 2, valid for six months, expired shortly before midnight on May 1 and therefore had no “democratic legitimacy”.
Speaking before the Royal Courts of Justice after Thursday’s ruling, RCN Secretary-General Pat Cullen said it was the ‘darkest day’ of the dispute so far.
“They [the government] they won their legal [action] Today. But what this has led to is that they have lost nursing and they have lost the public,” she said. “They have taken the most trusted profession through the courts, by the least trusted people.
“And what a day for breastfeeding. What a day for patients. And who accuses this government of doing this to the very people who have held this NHS together, not just through the pandemic, but an NHS that has been grounded and in crisis, because of this government.
He said the nurses – who are in dispute with the government over pay – would stop striking on May 2 but would continue with the action planned on April 30 and May 1. The union doesn’t allow any services to be waived, which means nurses in emergency rooms and critical care could walk out.
Ms Cullen has previously urged ministers to resume negotiations after RCN members rejected a 5% pay offer. You have criticized Mr Barclay and the government for applauding nurses only to ‘crumble’ the NHS.
Barclay welcomed the decision. He said: “I strongly support the right to take industrial action within the law, but the government could not stand by and let a clearly illegal strike action go ahead.
“Both the NHS and my team have tried to resolve this without recourse to legal action, but unfortunately, following a request from NHS employers, we have regretfully taken this step to protect nurses by ensuring they are not asked to to take part in an illegal strike. “
After the hearing, Downing Street said it was “regrettable” that the government had to take legal action against the RCN. Rishi Sunak’s official spokesman said, “I think, firstly, it is obviously regrettable that we had to go to court in the first instance.
“The government never wanted to take him to court. We really tried every possible way to avoid a court case.
“The NHS has presented the RCN with clear legal evidence that their planned strike on 2 May was illegal. We asked them to cancel it. The RCN declined. This is why the NHS has asked the government to intervene and seek the opinion of the court”.
As reported in the Health Service Journal, Cambridge University Hospital officials have warned staff they would only have ‘one nurse per ward’ due to severe shortages during the strike.
Despite NHS safety concerns, several hospital chiefs said The independent they were not consulted about the lawsuit this week and suggested it was not helpful.
In response to the action, a chief executive said: “I have not received any approaches for an opinion on the legal challenge. It is a useless clinking of sabers. There should be some good old fashioned 70’s style negotiation instead of this public squirming.
Several chief nurses also said they were not consulted, with a caveat that the action “misses the point”.
Another said The independent: “The government should spend its time negotiating, not taking the RCN through the courts. All it will do is strengthen the nurses’ resolve for the next ballot.
If a new wage deal is not agreed before this weekend’s strike, the RCN will have to re-vote members to get a new mandate for any further leavers this year.
Judge Linden said in his ruling that Thursday’s hearing was about an interpretation of the law, as it was not the court’s job to enter the competing positions of the pay dispute. He said he was considering “the interests of the public,” including those who may need treatment on Tuesday.
Earlier, Government solicitor Andrew Burns KC accused the RCN of being ‘incompetent at looking at the timetable’ and warned nurses were ‘at risk of regulatory penalties if they take illegal strike action’.
In written submissions, he said the health secretary had called for an “urgent” statement that “the RCN’s threatened inducement of its members to breach their employment contracts by joining industrial action on 2 May 2023 is illegal”.
RCN lawyers failed to appear at the High Court. The judge said it was a “concern” and ordered the union to pay £35,000 in legal costs.
Danny Mortimer, chief executive of NHS Employers, said: “The RCN could and should have resolved this significant issue of the legality of its strike sooner.
“More than a week ago NHS employers approached the RCN to ask if its strike action mandate had expired at midnight on 1 May 2023, and not the 2 May they seemed to be suggesting.
“The RCN vigorously rejected our claim and we were left with no choice but to ask the secretary of state to seek the opinion of the courts.
“Clarity has now been achieved, including for RCN members, and the judge confirmed the position we expressed last week: any strike action taking place on 2 May would be illegal.”
Sir Julian Hartley, chief executive of NHS Providers, has urged the RCN and the Government to negotiate after six months of strike action, including by young doctors, led to the cancellation of 530,000 patient appointments.
He said: ‘Nobody in the NHS wants more strikes which add to the already severe pressure on services, including chronic understaffing.
“The abbreviated RCN strike, due to begin Sunday evening, for the first time includes nursing staff in emergency, critical care and cancer care, posing unprecedented risks and challenges for leaders and staff of the trust who will do anything to minimize disruptions and keep patients safe.