This weekend’s nurses’ strike will be cut short after the High Court ruled part of the walkout was unlawful.
Tens of thousands of nurses had planned to finish the 48-hour strike at 8pm on 2 May, but will now end the walkout at midnight on 1 May after the government brought action against the Royal College of Nursing.
Health secretary Steve Barclay claimed he had been forced to bring the action after NHS Employers, which represents hospitals, asked him to check the legality of the walkout. His lawyers successfully argued that the strike mandate secured on 2 November, which is valid for six months, expired just before midnight on 1 May and therefore had “no democratic legitimacy”.
Speaking outside the Royal Courts of Justice following the ruling on Thursday, RCN general secretary Pat Cullen said it was the “darkest day” of the dispute so far.
“They [the government] have won their legal [action] today. But what this has led to is they have lost nursing and they’ve lost the public,” she said. “They’ve taken the most trusted profession through the courts, by the least trusted people.
“And what a day for nursing. What a day for patients. And what an indictment on this government to do this to the very people that have held this NHS together, not just through the pandemic, but an NHS that has been run into the ground and in crisis, caused by this government.”
She said nurses – who are in a dispute with the government over pay – would no longer strike on 2 May but would continue with the planned action on 30 April and 1 May. The union is not allowing for any services to be exempt, meaning nurses in A&E and critical care may walk out.
Ms Cullen has previously urged ministers to resume negotiations after RCN members rejected a 5 per cent pay offer. She criticised Mr Barclay and the government for clapping for nurses only to leave the NHS to “crumble”.
Mr Barclay welcomed the decision. He said: “I firmly support the right to take industrial action within the law – but the government could not stand by and let plainly unlawful strike action go ahead.
“Both the NHS and my team tried to resolve this without resorting to legal action, but unfortunately, following a request from NHS Employers, we took this step with regret to protect nurses by ensuring they are not asked to take part in an unlawful strike.”
Following the hearing, Downing Street said it was “regrettable” the government had to take legal action against the RCN. Rishi Sunak’s official spokesperson said: “I think, firstly, it is obviously regrettable that it had to come to court action in the first instance.
“The government never wanted to take this to court. We did indeed try every possible way to avoid a court case.
“The NHS presented the RCN with clear legal evidence that their planned strike for May 2 was unlawful. We asked them to call it off. The RCN refused. That’s why the NHS asked the government to intervene and seek the view of the court.”
According to reports in the Health Service Journal, Cambridge University Hospital officials warned staff it would only have “one nurse per ward” amid severe shortages during the strike.
Despite concerns over safety from the NHS, multiple hospital chiefs told The Independent this week they were not consulted about the legal action and suggested it was unhelpful.
In response to the action, one chief executive said: “I received no approach for an opinion over the legal challenge. It’s unnecessary sabre rattling. There should be some good old fashioned 1970s-style negotiations instead of this public willy waggling.”
Several chief nurses also said they were not consulted, with one warning the action “misses the point”.
Another told The Independent: “The government should be spending time negotiating, not taking the RCN through the courts. All it will do is stiffen the resolve of nurses for the next ballot.”
If no new pay deal is agreed ahead of the strike this weekend, the RCN will have to re-ballot members to gain a new mandate for any further walk-outs this year.
Mr Justice Linden said in his ruling that Thursday’s hearing was over an interpretation of the law, with it not being the court’s role to enter into the competing positions of the pay dispute. He said he took into account “the interests of the public” including those who may require treatment on Tuesday.
Earlier, the government’s barrister Andrew Burns KC accused the RCN of being “incompetent when looking at the calendar” and warned that nurses were “at risk of regulatory sanction if they take unlawful strike action”.
In written submissions, he said the health secretary sought an “urgent” declaration that the RCN’s “threatened inducement of its members to breach their contracts of employment by participating in industrial action on May 2 2023 is unlawful”.
Lawyers for the RCN failed to attend the High Court. The judge said it was a “concern” and ordered the union to pay £35,000 of 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 now NHS Employers approached the RCN to query whether its mandate for strike action expired at midnight on May 1 2023, and not the May 2 they had appeared to suggest.
“The RCN vigorously rejected our assertion and we were left with no choice but to ask the secretary of state to seek the view of the courts.
“Clarity has now been achieved, not least for RCN members, and the judge has confirmed the position we set out last week: any strike action occurring on May 2 would be illegal.”
Sir Julian Hartley, chief executive of NHS Providers, urged the RCN and government to negotiate after six months of strike action, including by junior doctors, led to the cancellation of 530,000 patient appointments.
He said: “Nobody in the NHS wants more strikes ratcheting up already severe pressure on services, including chronic staff shortages.
“The shortened RCN strike, due to start on Sunday evening, for the first time includes nursing staff in emergency departments, intensive care and cancer care, posing unprecedented risks and challenges for trust leaders and staff who will pull out all the stops to minimise disruption and keep patients safe.”
