We can restrict doctors’ strikes

As “resident doctors” are on their 15th strike of a dispute which began three years ago, politicians are talking tough. Kemi Badenoch has repeated her pledge of last summer, that the Conservatives would ban strikes by doctors. More significantly, Health Secretary Wes Streeting has for the first time suggested that a ban is an option which could be considered.

So far, this kite-flying has not been repudiated by other members of the government. Considering that Labour has recently passed an Employment Rights Bill which is very favourable to unions — for example by making it easier to call strikes, and lengthening the period of a strike mandate from six months to a year — this indicates that ministers are becoming increasingly concerned about the cost of the resident doctors dispute both in monetary and human (waiting lists and missed treatments) terms. They are definitely baulking at the cost of settling the dispute on the doctors’ terms, which would be somewhere in the region of £1.5 billion and would almost certainly stimulate other public sector pay claims, not least amongst the rest of the 1.5 million NHS workers.

The public, too, is concerned, with 55 per cent now opposing the strikes. It’s possible that some doctors may also be having doubts. Back in 2023, 98 per cent of those BMA members voting on a 77 per cent turnout were in favour of strike action. In the most recent vote, announced in February, this had fallen to 93 per cent on a 53 per cent turnout. Bearing in mind that 20 per cent are not in the union, this means that only about 40 per cent of resident doctors voted for the current round of strike action.

Banning doctors’ strikes would be a tough call, but it is feasible. At present, most strike action is legitimate if it has been agreed through proper voting procedures. This means unions cannot be sued for breach of contract. The only significant exceptions are the armed forces, the police and prison officers. However, banning doctors’ strikes would not be in breach of any international obligations of the kind which this government seems so keen on. The International Labour Organization, to which we are signed up, specifically permits strike bans in services ‘whose interruption would endanger the life, personal safety or health’ of the population. This would surely cover strikes by doctors.

Are such bans found in other countries? In practice, complete bans are only found in authoritarian polities such as Saudi Arabia and China. But there are considerable restrictions in many countries. In Singapore, most healthcare workers are public servants, and strikes in essential services are illegal without express government permission. In Czechia and Slovakia there are considerable restrictions on healthcare strikes. In Germany and France there are minimum service agreements, of the kind which our ERA has just scrapped.

The United States is particularly interesting. Strikes are possible in private healthcare but forbidden in Federal hospitals, such as those run by Veterans Affairs, and in public hospitals in, for example, New York, Florida and Texas. Worth noting is that in some US jurisdictions doctors are treated as independent contractors, who are thus not protected by the National Labor Relations Act. In the UK, most GPs (and some consultants) are independent contractors and — although this hasn’t been tested — strikers under these arrangements would probably not be protected if they broke contracts with NHS bodies. Maybe more NHS employees should become contractors.

In several Australian states, too, doctors in public hospitals may not strike, while in other states industrial action can only take place after going through elaborate Fair Work Commission approval procedures. And in Canada, some provinces oblige doctors to submit to binding arbitration — something which was once possible here, though this was ended with the passing of Edward Heath’s 1971 Industrial Relations Act. Perhaps this possibility should be brought back.

However a more radical, if longer-term, option would be to break up the monolithic structure of the NHS and to introduce an insurance-based system which might allow competition in the healthcare labour market — instead of the current bilateral monopoly where big union faces off against big employer. Failing that, perhaps we should abandon national pay scales and allow for regional bargaining. After all, Scotland goes its own way with different pay settlements from those reached in England and Wales. Something similar could be adopted in main regions.

These examples show that, even if a complete ban on doctors’ strikes is not implemented, there are a number of options available to restrict strike action. We should not permanently have to put up with already well-paid doctors effectively holding taxpayers — and NHS patients —  to ransom.