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Analysis by Ashish Joshi, health correspondent
It should not have come to this. There was no complex legal argument. The law is inflexible and so are calendars.
The Royal College of Nursing mandate to strike began on 2 November and lasted for six months. A simple calculation would have shown that 2 May fall outside this period.
NHS Employers asked the government to take this legal action. They described the nurses’ action as regrettable.
So too did Steve Barclay, the health secretary. He might be expected to say that, given his role in this dispute.
But High Court judges are independent. They are not taking sides but merely enforcing the rule of law. Mr Justice Linden said the union had showed “a high degree of unreasonableness”, that the outcome was “inevitable” and “instead of grasping the nettle and conceding”, it had forced the case to court.
Pat Cullen did not hear him say this. She was outside the High Court with her supporters. In fact, the RCN had no legal representation to make their case inside Court 15 at all.
Ms Cullen instead had submitted a witness statement. The judge said it was probably “written for a different audience” and “although she could not bring herself to say it, she probably thought the secretary of state’s legal interpretation of the planned strike dates was correct.”
In other words, nobody expected the RCN to win in court today. So why did they persist with the court case?
The strike dates were announced very quickly after the union rejected the government’s pay offer. There is a timeframe for giving notice of intended industrial action so that would have added to the pressure.
Once the dates were announced and after the possibility of illegality was raised maybe the RCN decided it was too late to back down. It certainly helped to play into the RCN’s narrative of nurses standing up to a “bullying government”.
The RCN has been ordered to pay court costs – money it could have used to top up its strike funds as there seems no end in sight to this increasingly bitter fight.
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