The Implications of the ASLEF Case

The decision of the European Court of Human Rights in ASLEFv United Kingdom (27 February 2007) will require the governmentto re-visit the law relating to the right of trade unions toexclude and expel individuals because of their membership ofpolitical organisations perceived by trade unions to be hostileto their interests. It is now clear—as was pointed outat the time—that the changes made by the Employment RelationsAct 2004 do not go far enough to meet obligations under theEuropean Convention on Human Rights (ECHR). However, the casealso raises much wider questions about the compatibility ofother statutory restraints on trade union autonomy with Article11 of the ECHR, notably ss 64–67 (on unjustifiable discipline)and 174–177 (on exclusion and expulsion as a whole, andnot only the measures relating to membership of hostile politicalparties). This article considers both the immediate and thewider implications of the ASLEF decision for British trade unionlaw, in the context of what appears to be a greater willingnessof the Strasbourg Court to listen more carefully to trade uniongrievances than in the past. The article also draws attentionto the role of litigation as a trade union strategy to recoverlost rights, and again emphasises the importance of InternationalLabour Organisation Convention 87 and the Council of Europe'sSocial Charter of 1961 (as well as the jurisprudence thereunder)as important sources in the construction of the ECHR, Article11.