Health secretary Steve Barclay has been accused by the Royal College of Nursing of trying to “bully and silence” nurses after the government issued legal papers in an attempt to block a planned May Day strike, describing it as unlawful.
A “pre-claim” letter was issued in Barclay’s name on Friday, demanding the RCN cancel industrial action planned for 30 April to 2 May.
In the five-page legal letter, seen by the Guardian, the government’s lawyers say they will seek “declaratory relief” – a legal term for asking the courts to step in – unless the union’s leadership advise its members that the two-day strike is unlawful and that they should stay at work.
The formal legal challenge marks an extraordinary escalation of a dispute over the planned strike days.
Barclay said: “Following a request from NHS Employers I have regretfully provided notice of my intent to pursue legal action to ask the courts to declare the Royal College of Nursing’s upcoming strike action planned for 30 April to 2 May to be unlawful.
“The government firmly believes in the right to strike, but it is vital that any industrial action is lawful and I have no choice but to take action. Strike action with no national exemptions agreed, including for emergency and cancer care, will also put patient safety at risk.
“This legal action also seeks to protect nurses who could otherwise be asked to take part in unlawful activity that could in turn put their professional registration at risk and would breach the requirements set out in the nursing code of conduct.”
Earlier in the week, NHS Employers had warned the RCN that they believed the second day of the planned strike would be unlawful.
The RCN won support for strikes in a vote of its members on 2 November. The union had six months to take the industrial action and it has been argued that the second day of the planned strike falls outside the mandate.
The RCN’s planned strike action, involving tens of thousands of nurses, is due to take place from the start of the night shift at 8pm on Sunday 30 April until 8pm on Tuesday 2 May.
Pat Cullen, the RCN’s general secretary, said the government’s threat of an interim court order to stop the entirety of the 48-hour strike would not stand.
She said: “This is nakedly political. Nurses will not be gagged in this way by a bullying government. We are clear that court arguments should only relate to 2 May and not 30 April and 1 May.
“The government is now desperate to silence nurses rather than address this properly. We want to be in the negotiating room, not the courtroom.”
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The strike follows a vote by RCN members by 54% to 46% to reject the government’s offer of a 5% pay rise this year and a cash payment for last year.
RCN members have also since rejected the offer of a one-off payment worth between £1,700 and £3,000 for 2022-23 and 5% for 2023-24, with 54% voting against it on Friday on a 61% turnout.
The RCN is relying on a 1995 mining dispute to argue that the strike action can lawfully extend to midnight on 2 May.
The RCN has recently announced it will seek a second legal mandate to continue its strike action from June to December, raising the stakes for the government.
The move by Barclay raises the possibility of a high-profile court clash between the health secretary and the world’s largest nursing union over the historic decision to call a series of strikes over pay and working conditions.
In the letter, the health secretary’s lawyers state: “Unless by noon on Monday 24 April 2023 the RCN has instructed its members that they must not participate in industrial action between 30 April and 2 May 2023 and repudiates the Notices, informing them of their unlawfulness, the secretary of state intends to apply to the high court for an interim declaration pending a final declaration at trial that the industrial action threatened by the RCN between 30 April and 2 May 2023 is unlawful in its entirety.”
