Lord Lester’s amendment

The Commons votes today on the third reading of the Employment Bill, the main interest in which is what’s now clause 19, which amends section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 in order to permit unions to bar or expel members of the BNP. The amendment flows from the ruling of the European Court of Human Rights last year in ASLEF v UK, which decided that the 1992 Act, which the Employment Appeal Tribunal had read as preventing the train drivers’ union from expelling one of its members on grounds of BNP membership, was in breach of ASLEF’s article 11 Convention right to freedom of association.

At first blush that might seem a paradoxical judgment: how can the right to free association have the result that people should be denied union membership? Actually it makes sense, though: as the ECtHR explained at paragraph 39 of its judgment,

Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.

The government had planned a simple amendment, just permitting explusion on grounds of membership of political parties, but a small spat has broken out over clause 19, which takes its present form as the result of an amendment proposed by Lord Lester and backed by the Lords, which includes a number of safeguards for the union member at risk of explusion – for instance, that the union must amend its rule book to allow for such explusions, and must give the member a right to make representations. Lord Lester’s got those safeguards from paragraph 43 of the ASLEF judgment. Here’s a BBC report explaining the issues, and here you can listen to a short discussion on Today between Lord Lester and Tony Lloyd about the amendment. You might also be interested in the scrutiny report by the Joint Committee on Human Rights from April this year, which unsurprisingly backed Lord Lester.

This is interesting politically of course, and I think Lord Lester’s reading of the ASLEF judgment is more or less right: a union would go further than article 11 permits, and would breach its member’s right of association, if it expelled him or her contrary to its own rule book or in a way that is procedurally unfair. I’m not sure that really requires the rule book to be amended in advance – but that’s a minor quibble. What’s interesting on an extremely nerdish legalistic level is that none of this legislative dispute really matters. Even if the government gets its way, sections 2 and 3 of the Human Rights Act mean tribunals will need to read the new legislation taking account of ASLEF, and will read in the pargraph 43 safeguards. I would have thought Lord Lester’s best argument is simply that his text puts them clearly on the face of the statute.