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The High Court has ruled that the next nurses’ strike is unconstitutional

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A High Court judge has ruled that the Royal College of Nursing‘s proposed strike action for next month would be illegal.

Health Secretary Steve Barclay announced last week that he will file a lawsuit against the suggested strikes.

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Over the May bank holiday, RCN members who work in the NHS in England are getting ready to go on a 48-hour strike.

They plan to leave starting at 8 p.m. on April 30 (the start of the night shift) and remaining until 8 p.m. on May 3 (the start of the night shift).

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LONDON, ENGLAND - APRIL 27: RCN members protest at government attempts to make their strike illegal at the High Court on April 27, 2023 in London, England. Health Secretary is taking the Royal College of Nursing Union to court in a bid to have their planned strike on May 2nd declared illegal. (Photo by Guy Smallman/Getty Images)
The nurses appeared outside the High Court this morning (Picture: Getty)

However action on May 2 will now no longer go ahead.

The action will see nurses in emergency departments, intensive care and cancer wards down tools for the first time.

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But the Government said the action on May 2 would be outside of the union’s mandate as its ballot closed at midday on November 2.

A High Court judge has now ruled the planned strike action on May 2 as ‘unlawful’ as it falls beyond its legal mandate.  

Appearing before the High Court on Thursday lawyers acting for the Department of Health and Social Care (DHSC) argued the upcoming strike by the RCN had no ‘democratic legitimacy’ and risked harming patients, carers and the public.

Andrew Burns KC, acting on behalf of the DHSC, said that Pat Cullen had not been honest with its members over the legitimacy of the nurse’s strike.

Nurses hold up placards expressing their opinion during the demonstration outside St Thomas' Hospital. The Royal College of Nursing has organized two days of strike action over pay and working conditions, though have signaled that a willingness to negotiate their original demand of a 19% pay rise. Nurses Hold February Strikes Over Pay And Conditions in London - 07 Feb 2023
Nurses on strike outside of St Thomas’ Hospital earlier this month(Picture: Tejas Sandhu/SOPA Images/Shutterstock)

Mr Burns told the court: ‘The Secretary of State is very concerned that the RCN has not come clean with its members.

‘The Secretary of State is very worried that this position puts nurses in an invidious position. 

‘The RCN has been incompetent in looking at its calendar’.

Steve Barclay wrote to Ms Cullen on Wednesday questioning why the union had decided not to send lawyers to the hearing.

Mr Burns said that the RCN’s decision not to appear came after several hours of silence yesterday and that it appeared they were in a state of ‘some internal paralysis.’

Mandatory Credit: Photo by Tayfun Salci/ZUMA Press Wire/Shutterstock (13875846d) Secretary of State for Health and Social Care STEVE BARCLAY is seen outside 10 Downing Street as cabinet meet. Steve Barclay at cabinet meeting, London, England, United Kingdom - 18 Apr 2023
The Health Secretary took the RCN to the High Court for a ruling over the latest round of strike action (Picture: Tayfun Salci/ZUMA Press Wire/Shutterstock)

He said the group was trying to ‘work out how to get themselves out of the hole they had got themselves in’. 

He continued: ‘Industrial action must have the support of a democratic mandate.

‘As far as the Secretary of State is concerned this is an open and shut case.’ 

Addressing Ms Cullen’s witness statement provided to the court, Mr Burns said: ‘The strike is outside the democratic mandate by one day and Pat Cullen should accept that’.

In a letter sent to the court the union said its decision not to send representatives was ‘in no sense … intended to demonstrate any disrespect’ to the judge or the court.

The letter read: ‘The RCN has been a staunch critic of the ideologically driven changes introduced by the Trade Union Act 2016.

‘Given the existence of an overwhelming mandate from its members in support of the action, the fact that not a single employer has intimated a challenge to the planned action on 2 May 2023 and the steadfast public support for nurses taking action, the RCN does not wish to give credence to what it fervently believes to be an unnecessary and misguided application brought by the Secretary of State, and one which is exclusively based upon one of the very many amendments introduced by the Trade Union Act 2016.’

NHS bosses wrote to Health Secretary Steve Barclay asking him to check the legality of the strike action, before the mandate expires in May.

In a statement released on Twitter, Mr Barclay said he had ‘no choice but to proceed with legal action’ against the Royal College of Nursing.

He said: ‘Following a request from NHS Employers I am regretfully applying to the High Court to declare the Royal College of Nursing’s planned strike action on May 2 unlawful.

‘Despite attempts by my officials to resolve the situation with the RCN over the weekend, I have been left with no choice but to proceed with legal action.

‘I firmly support the right to take industrial action within the law – but the government cannot stand by and let unlawful strike action go ahead nor ignore the request of NHS Employers.

‘We must also protect nurses by ensuring they are not asked to take part in an unlawful strike.’


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