Posted by Article 11 of the European Convention on Human Rights provides for freedom of association and states quite clearly that:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.1
Most people would, semmingly quite rightly, read into Article 11 that anyone, regardless of race, gender, age, political affiliations, etc. has the right to join a trade union (amongst other things).
Well, on December 6, 2007, a Bill was introduced to Parliament with its first reading. The Employment Bill has a few objectives (including disqualifying Cadet Force Adult Volunteers from being entitled to the national minimum wage whilst carrying out their Cadet duties). However, the one I want to focus on is described in the introductory paragraph: “A BILL … to make provision about the right of trade unions to expel or exclude members on the grounds of membership of a political party”.2
That in itself could mean that either the Bill intends to allow it, or prohibit it. What the Bill is in fact doing is amending The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), which, at present, states that trade unions have no right to expel members based on their membership of, or activism with, a political party. The amendment would permit trade unions to expel members based on political party membership, past or present, if membership is “contrary to … a rule of the trade union, or … an objective of the trade union”.2
Opponents of the Labour/trade union marriage would argue that this is further evidence of the Labour Party cuddling up to the trade unions, perhaps in an attempt to get more money from them in light of their current financial predicament. In reality, this is far from true.
The amendment follows a 2007 case in the European Court of Human Rights: Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom. In short, ASLEF had expelled a member (L) for being an active member of the BNP, yet L had taken ASLEF to the Employment Tribunal and won his case, citing The Trade Union and Labour Relations (Consolidation) Act 1992 s 174. ASLEF appealed and won, as the union was expelling L for his conduct (he had harassed Anti-Nazi League campaigners and distributed Anti-Islamic leaflets). The case was referred to another Employment Tribunal, which again found in L’s favour, as he had primarily been expelled because he was a member of the BNP.
ASLEF was, understandably, not happy. They were forced to re-admit L, which breached their own rules (they had passed a 1978 resolution to campaign against and “expose the obnoxious policies of political parties such as the National Front”). As a result, in 2005, ASLEF lodged a complaint with the European Court of Human Rights.
ASLEF was fighting their case relying on Article 11, claiming that freedom of association was infringed by being unable to expel L. The Trade Union and Labour Relations (Consolidation) Act 1992 s 174 forced ASLEF to re-admit L or face paying compensation, which infringed the freedom of association rights of other members. This meant that ASLEF were now taking on the UK government.
Without going into the fine details of the judgment (partly for reasons of time and copyright), the court found in favour of ASLEF, unanimously finding a violation of Article 11 on the part of the legislation, and awarded them 53,900 euros for costs and expenses. It was their view that the legislation did not strike the right balance between the rights of the union (ASLEF) and the member (L) – that just as an employee has the right to join a trade union, so a trade union has a right to choose its members.3
Within a matter of months, the UK government set about consulting unions, legal professionals and employers about how to alter the legislation to comply with Article 11. They came up with two options, and the first was supported 26-to-four:
Section 174 should be amended to ensure there is no explicit reference to a special category of conduct relating to political party membership or activities. This change would in effect position political party membership and activities under the general heading of “conduct” (which was the situation before the Trade Union Reform and Employment Rights Act 1993 was implemented). Where such political party membership or activities were “unacceptable” to the trade union, it would therefore be lawful for the union to expel or exclude on those grounds.4
So back to the original question. I’ve made no secret of the fact that I am a member of the Union of Shop, Distributive and Allied Workers (USDAW). It would not take much for them to realise that I am also an active Conservative. By the current UK legislation, they cannot legally expel me (although, after the precedent set by ASLEF v UK, they could argue otherwise), yet by Article 11, UK legislation cannot legally prevent them for expelling me!
Confusing, no? Well, that’s what the Employment Bill aims to clear up. They are going to permit exactly that, in accordance with Article 11. So, does that effectively give the unions the green light to expel everyone who is not a member of the Labour Party, or its affiliates (including the Co-operative Party)?
“[T]here would be no special safeguards against possible abuse”, says the government. But “there is no evidence that trade unions would make use of this greater freedom by expelling members or activists of mainstream political parties”.4
References
1. Council of Europe, ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ <http://conventions.coe.int/treaty/en/Treaties/Html/005.htm> accessed 25 September 2008
2. House of Commons, “Employment Bill [HL]” <http://www.publications.parliament.uk/pa/cm200708/cmbills/117/08117.i-ii.html> accessed 25 September 2008
3. Associated Society of Locomotive Engineers & Firemen v United Kingdom [2007] All ER (D) 348 (Feb)
4. Department for Trade and Industry, ‘ECHR JUDGMENT IN ASLEF V UK CASE – IMPLICATIONS FOR TRADE UNION LAW Consultation Document’ (PDF) <http://www.berr.gov.uk/files/file39440.pdf> accessed 25 September 2008
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