European Court upholds trade union right to veto members

A recent ruling of the European Court of Human Rights in the case of Aslef v UK, Case C-1002/05, represents an important development in the determination of trade union autonomy. The court ruling holds that in the same way as individuals have the right to join or not to join trade unions, so too do unions have the right to accept or reject membership applications. The relevance of Article 11 of the European Convention on Human Rights in relation to the court’s decision is also examined.

On 27 February 2007, the European Court of Human Rights issued its judgement in the case of [Aslef v UK](http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=aslef | v | UK&sessionid=841544&skin=hudoc-en) (Case C-1002/05), when it ruled that trade unions could refuse to accept the membership of anyone whose views or practices were considered incompatible with the union’s principles and objectives.

Background to case

The case arose as a result of a UK law which allowed UK trade unions only to exclude or expel individuals from membership for one of a number of permitted reasons, which did not include exclusion on the grounds of political party membership. Mr Jay Lee, a member of the Amalgamated Society of Locomotive Engineers and Firemen (Aslef) was, prior to his expulsion, also a member of the British National Party, a far-right-wing party holding racist views. The trade union heard reports that Mr Lee had stood as a candidate in local elections, had handed out anti-Islamic leaflets, and had seriously harassed anti-racist activists. In light of these reports, the union decided that his views were incompatible with its core principles and expelled him from the organisation.

Case brought to court

Mr Lee appealed to the courts to have his expulsion from Aslef reversed and, at the same time, he also claimed monetary damages from the union. Both Mr Lee and the union based their claims on Article 11 of the European Convention on Human Rights, which states that everyone has the right to form and join trade unions without restrictions, other than those in place in the interests of national security or public safety. Mr Lee claimed that this freedom gave him the right to join a trade union of his choice while the union claimed that Article 11 gave it the right to choose who should be a member of their organisation.

Court ruling

The court ruled that the essential objective of Article 11 is to protect the individual and private bodies, against arbitrary interference by public authorities, in exercising their right to form and join trade unions protected under the Convention on Human Rights. Drawing on earlier decisions, in the related cases of Young, James and Webster v UK (1981) and Wilson and the National Union of Journalists v UK (2002), the court held that just as an employee or worker should be free to join, or not to join, a trade union without being sanctioned or subject to disincentives, so should a trade union be equally free to choose its members. The court considered that Article 11 could not be interpreted as imposing an obligation on associations to admit whoever wished to join.

In fact, in the view of the court, such an interpretation would run counter to the very effectiveness of the freedom to form trade unions if it were the case that trade unions had no control over who should be their members. While the court accepted that some situations may arise where this general proposition should not apply, such as where a trade union is in a position to regulate employment, trade union membership nevertheless implies a choice, including over who should be a member. The court accepted that, by giving this right to a trade union, individuals could as a result be restricted in exercising their freedom to join a trade union. However, in this case, the court did not believe that such a restriction had a fundamental impact on Mr Lee, in that he did not suffer any particular detriment. His lack of trade union membership did not impact on his right to work. There was no requirement that he should be a trade union member in order to work, and the terms of any collective agreements still apply to him equally as a non-union member.

Government reaction

In responding to the judgement, the UK government has accepted that trade union law has to be amended to ensure compatibility with the Convention on Human Rights. In May 2007, the government issued a consultation document listing alternative proposals for changes to the law. Although the Aslef case primarily concerns UK laws, the fundamental principles which it advances are relevant to all trade unions in the EU, confirming trade union autonomy in matters which are internal to its organisation.

Sonia McKay, Working Lives Research Institute