BALANCING COMPETING RIGHTS TO FREEDOM
OF ASSOCIATION
1.23 The ASLEF judgment unequivocally recognises
that trade unions enjoy, under Article 11 ECHR, a right to freedom
of association which includes the prima facie freedom to
set up their own rules concerning conditions of membership. The
judgment, however, is equally clear that this right of trade union
autonomy is not unlimited: the Court clearly envisages a positive
obligation on the State under Article 11 ECHR to protect the freedom
of association of the individual against abuse of a dominant position
by trade unions. This is clear from para. 43 of the judgment,
quoted above. The question therefore is essentially whether clause
18 as drafted provides sufficient safeguards against possible
abuse of the new power to exclude or expel for political party
membership, and, if not, precisely what additional safeguards
are necessary.
1.24 The TUC and the Government argue that clause
18 already strikes the right balance between the competing interests
under Article 11. In any event, the Government argues that the
availability of such remedies does not matter, because, under
the conditions created by UK law, including the absence of the
closed shop, a union's decision to expel or exclude an individual
cannot obviously result in severe hardship. Unlike in the days
of the closed shop, the inability to obtain or retain union membership
will not lead to loss of livelihood.
1.25 The Government is clearly correct that certain
safeguards against abuse already exist in the form of complaints
to the Certification Officer and actions for breach of contract
in the civil courts. We also accept that the effective prohibition
of the closed shop means that the inability to obtain or retain
union membership is unlikely to lead to loss of livelihood. However,
there are some gaps in the safeguards which currently exist.
1.26 Neither of the safeguards, for example, are
available to a person who has been excluded (as opposed to expelled)
from membership of a trade union. Only a member or former member
can complain to the Certification Officer or bring a claim for
breach of contract. The Government acknowledges that the safeguards
relied on do not apply in exclusion cases, but argues that in
practice expulsions are much more common than exclusions for political
activities.[23]
1.27 There appears to be another gap in the existing
safeguards, concerning exclusions or expulsions which would result
in hardship for the individual concerned. The Government asserts
that a remedy would be available in court: "the principles
of natural justice would prevent an expulsion in circumstances
which would result in hardship for the individual concerned",[24]
and "case-law indicates that the courts could intervene to
prevent an exclusion which resulted in hardship."[25]
It appears that the case-law that the Government has in mind here
is an old line of administrative law decisions in which the courts
held that the principles of natural justice (or, in other words,
procedural fairness) apply to decisions by bodies, including trade
unions, which have the effect of preventing an individual from
pursuing a trade or profession or from working in their chosen
field.[26] However, while
the administrative law principles of procedural fairness are likely
to apply in exclusion or expulsion cases involving loss of livelihood,
they may not apply to such decisions involving less severe personal
hardship, and in any event they may only bring an entitlement
to certain procedures being followed rather than prevent exclusion
or expulsion per se.
1.28 In any event, in our view, the Government's
reliance on the availability of remedies after an abuse of power
is insufficient. Individuals need protection in advance and the
best way to secure this is to write some detailed safeguards into
the legislation itself.
1.29 There is
clearly a positive obligation to provide some safeguards against
abuse and, in our view, there do appear to be some gaps in the
existing safeguards which leave individuals exposed to the possible
abuse of a union's dominant position in a way which could have
a detrimental impact on them. We therefore recommend that Clause
18 should be amended to provide additional safeguards in order
to strike a "fair balance" between, on the one hand,
the Article 11 right of a trade union to control its membership
and, on the other, the Article 11 rights of the individual, including
the right not to be excluded or expelled from a union arbitrarily
or in circumstances that would result in exceptional hardship.
1.30 We recommend
the following amendment to Clause 18, which seeks to take into
account the criticism that unions cannot themselves directly affect
a person's livelihood/conditions of employment, and to follow
more closely the language of the judgment in the ASLEF case (particularly
para. 43):
Page 16, leave out lines 20 to 25
and insert-
(a) at the end of subsection (4A)
insert "but does not include membership of a political party
where the values and ideals of the party are incompatible with
a rule or objective of the union.
(b) after subsection (4B) insert-
(4C) For the purposes of subsection
(2)(d), the exclusion or expulsion of the individual is permitted
only if-
(a) the decision to exclude or expel
was taken in accordance with the union's rules and a fair procedure;
(b) the union's rules are not wholly
unreasonable; and
(c) the consequences of exclusion
or expulsion would not result in exceptional hardship.
1.31 We recognise
that such a formulation may be regarded as an invitation to litigate
the reasonableness of a union's rules and we therefore also suggest,
as an alternative, a narrower amendment to Clause 18 which would
leave out the requirement in proposed new subsection (4C)(b) that
the union's rules are not wholly unreasonable.
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