The Implications of the ASLEF Case

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The decision of the European Court of Human Rights in ASLEF v United Kingdom (27 February 2007) will require the government to re-visit the law relating to the right of trade unions to exclude and expel individuals because of their membership of political organisations perceived by trade unions to be hostile to their interests. It is now clear—as was pointed out at the time—that the changes made by the Employment Relations Act 2004 do not go far enough to meet obligations under the European Convention on Human Rights (ECHR). However, the case also raises much wider questions about the compatibility of other statutory restraints on trade union autonomy with Article 11 of the ECHR, notably ss 64-67 (on unjustifiable discipline) and 174-177 (on exclusion and expulsion as a whole, and not only the measures relating to membership of hostile political parties). This article considers both the immediate and the wider implications of the ASLEF decision for British trade union law, in the context of what appears to be a greater willingness of the Strasbourg Court to listen more carefully to trade union grievances than in the past. The article also draws attention to the role of litigation as a trade union strategy to recover lost rights, and again emphasises the importance of International Labour Organisation Convention 87 and the Council of Europe's Social Charter of 1961 (as well as the jurisprudence thereunder) as important sources in the construction of the ECHR, Article 11.