ANALYSIS:GARDAÍ DO not lose their status as citizens on appointment to the Garda. However, as members of a disciplined force they must accept certain constraints on their legal rights and freedoms that otherwise attach to the ordinary citizen. One of these is the bar on trade union membership, writes DERMOT WALSH
Contrary to general perception, however, there is no express statutory prohibition on the right of gardaí to strike. Nor is it a criminal offence for a member to go on strike.
The legal restrictions on trade union activity can be traced to 1919 and the strategy of the British government at the time to buy industrial peace with the police through a combination of large pay rises, special negotiating machinery and a bar on strikes. Some of these were carried into the setting up of the Garda Síochána in the 1920s, and are reflected in the Garda Síochána Act 2005 and associated ministerial orders and regulations.
The legislation imposes an express bar on gardaí joining or being members of a trade union, as distinct from representative bodies. The popular notion that they are legally prohibited from striking stems only from the fact that gardaí are not included within the definition of a worker for the purposes of the Industrial Relations Act 1990 which, with the Unfair Dismissals Act 1977, provides the basis for the general right to strike.
It follows that if gardaí go on strike, they may be denied the employment protections available to other striking workers under the guise of the “right to strike”, but it is not necessarily a criminal offence to do so.
There are provisions in the Offences against the State Acts which make it a criminal offence to incite or encourage gardaí to refuse to perform their duty. Under the Garda Síochána Act 2005, it is a criminal offence to induce a garda to withhold services or to commit a breach of discipline. While these hardly extend to balloting opinion on strike action, it is highly likely that they would apply to strike leaders who would persuade and organise gardaí to engage in strike action.
Attempts by strike proponents to counter these restrictions by appeal to international human rights norms are likely to fail. While the European Convention on Human Rights and the European Social Charter uphold the right to form and join trade unions, it seems they also tolerate restrictions on the right of police to join trade unions and to strike.
The prospect of a Garda strike is by no means unprecedented. Even before the force was fully deployed in 1922, significant numbers mutinied over pay and conditions. In the “Macushla Revolt” of the 1960s, some gardaí in Dublin engaged in a work-to-rule as a means of protest on pay and conditions. Also there was the “blue flu” protest in the 1990s.
Given this background, the real surprise may be that the Government did not include more explicit provisions prohibiting strike action when drafting the first major overhaul of the force’s statutory framework in 80 years. There can be little doubt the Government will be assessing the need for such provisions in the longer term. That will help to focus minds on the more fundamental issue of the relationship between police and central government in this country.
Prof Dermot Walsh is director of the Centre for Criminal Justice at the University of Limerick and is the author of Human Rights and Policing in Ireland – Law, Policy and Practice (2009), and The Irish Police (1998)