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Public Consultation On Proposals To Amend Trade Union Law

Response by Thompsons McClure, Solicitors

Thompsons McClure is the Northern Ireland associate of Thompsons Solicitors and has a particular interest in the case of ASLEF v UK, since our London partnership was instructed by ASLEF to pursue the case to its successful outcome in the European Court of Human Rights (ECHR). We welcome the opportunity to comment on the DEL’s proposals to amend the law in consequence of the ECHR decision and on its proposals for other changes to trade union law.


We welcome the opportunity to comment on the proposal that the 1995 Order should be amended to ensure that there is no explicit reference to a category of conduct relating to political party membership or activities.

Q1: What is your assessment of the Court’s judgment ?

The ECHR judgment requires any restraint on the freedom of a trade union in this respect to be justified as prescribed by law and necessary in a democratic society. The facts in the case were inevitably particular but the Court’s reasoning (as set out in paragraphs 42-46) has implications for the whole of article 38. For example, paragraph 43 gives three examples of abuse of a union’s dominant position in excluding or expelling a member – breach of rule, wholly unreasonably or arbitrary rules or where the consequences resulted in exceptional hardship. It is immediately obvious that article 38 goes well beyond the kinds of abuse envisaged by the court.

More importantly, article 38 does not start from the position embedded in Article 11 i.e. unions’ freedom to associate subject to limitations. On the contrary, it assumes that a union is not free to associate and then qualifies that by listing permitted grounds for exclusion or expulsion.

Furthermore, paragraph 50 of the decision, containing the key reasoning of the Court, contained twin grounds for its decision viz:

• expulsion did not impinge in any significant way on Mr. Lee’s freedom of expression or his lawful political activities. Nor did he suffer a significant detriment (there being no closed shop);

• particular weight should be given to ASLEF’s right to choose its members in accordance with its political aims and values. In this respect, the Court recognised that unions were often ideological bodies with strongly held views on social and political issues.

It follows that the Court’s ruling is that the structure and content of section 174 and article 38 are incompatible with the right of association. Given that the closed shop is unlawful; that both the Certification Office and the courts have jurisdiction for a union’s breaches of its own rules; and given the wide range of the law on discrimination, it falls to the Government to justify any of the provisions of article 38.

There is no need for the level of regulation contained in article 38. In our experience, there is no evidence that trade union members rely on article 38 in preference to discrimination law.

In summary, article 38 (even in a redrafted version) is unnecessary over-regulation and should be revoked in its entirety.

In this regard, it is important to acknowledge that trade unions are organisations with constitutions and rules. They admit members in accordance with those rules. Some trade unions have wide membership across many different occupations and industries in both the private and public sector. Other trade unions operate only in the public sector while some, like ASLEF, limit their membership one or more particular grades or categories of worker or skills.

When a member joins a trade union they agree to abide by the rules of the union, rules that are themselves approved by the union’s membership through its democratic structure. The union undertakes to provide certain levels of services primarily of a collective bargaining or representational nature but also those such as financial, legal and insurance services. The rule book sets out the contract between the trade union and its members. If a member is dissatisfied with their trade union or alleges it has not abided by the contract contained in the union’s rules, breach of contract actions are possible.

If a dispute arises about discipline of a member, that member has the right to complain through the civil courts or the Certification Office. Article 90A of the Trade Union and Labour Relations (NI) Order 1995 sets out the Certification Officer’s general jurisdiction for breaches of rules, including disciplinary rules.

The Certification Officer also has a role in regulating trade unions, including requiring that they are properly established. Unions must make annual returns to the Certification Officer, providing a range of financial and other information.

Other statutes and laws also apply to trade unions. Trade Unions are subject to controls parallel to those governing employers and are prohibited from discriminating against members on the grounds of:

• race: article 13 of the Race Relations (NI) Order 1997 applies;

• sex: article 15 of the Sex Discrimination (NI) Order 1976 applies;

• disability: section 13 of the Disability Discrimination Act 1995 applies;

• religion and political opinion: article 23 of the Fair Employment & Treatment (NI) Order 1998 applies;

• sexual orientation: regulation 17 of the Employment Equality (Sexual Orientation) Regulations (NI) 2003 applies;

• age: regulation 19 of the Employment Equality (Age) Regulations (NI) 2006 applies.

The above shows that trade unions are fully regulated under both common law and statute. In any event, following the ECHR decision, there is no continuing purpose for article 38.

Context in which section 174 and article 38 were originally enacted

It is important to note that section 174 and article 38 were originally enacted by a Conservative government hostile to trade unions, which sought to break trade union influence and in particular eradicate the closed shop. The provisions were a legislative attempt by the then government to prevent trade unions excluding or expelling members on the basis of their political belief. The provisions were aimed at protecting mainstream political parties, not the far right parties that now seek to exploit the legislation. Compensation was accordingly set at a very high level, not only to show the then government’s disapproval of politically-based exclusion but also to reflect the fact that a worker in a closed shop industry excluded from their union could also lose their job.

These circumstances no longer apply. Indeed as the ECHR commented in ASLEF v UK, Mr Lee, the member expelled by the union, never claimed he had suffered any detriment as the result of his exclusion. There was no apparent prejudice suffered by Mr Lee in terms of his livelihood or in his conditions of employment. In fact Mr Lee enjoys the benefit of ASLEF’s negotiations with his employer without having to pay any subscription to the Union.

There is a different political landscape in 2008. Section 174 and article 38 no longer serve any purpose and should be repealed in their totality. Improper exclusion or expulsion, as explained above, is dealt with by discrimination law. Merely tinkering with the wording would be a missed opportunity to introduce clarity to the law in this area.

Q2: Do you agree with the Department’s proposal to respond to the judgement by amending legislation to ensure that there is no explicit reference to a category of conduct relating to political party membership or activities? If not, why?

The consultation document proposes that article 38 be amended to ensure that there suggests that there is no explicit reference to a category of conduct relating to political party membership, so that current restrictions on unions to expel individuals on the grounds of political party membership would be removed. The paper says that this would “provide trade unions with much greater autonomy in deciding their membership”.

While the consultation paper accepts that an aggrieved member could seek legal redress for an expulsion in breach of rule by bringing a breach of rule claim before the courts, it does not refer to the Certification Officer’s jurisdiction for breaches of unions’ disciplinary rules – an easily accessible, low-cost and very effective remedy.

Article 38 is convoluted and confusing. Trade unions have always focussed on recruiting and organising membership in workplaces. Exclusion and expulsion are extremely rare occurrences. Trade unions tend to use lesser sanctions for breaches of rules and expulsion is only resorted to in the most extreme of breaches. Indeed, the BNP’s own publicity material, from 2003, asserts that the only expulsions have been of BNP members.

We therefore urge the complete repeal of article 38.

Unjustifiable discipline – article 31 of the 1995 Order

The Government should take this opportunity to repeal article 31 of the 1995 Order. This confers on union members a right not to be “unjustifiably disciplined”, defined as discipline where any one of the reasons fell within a long list of conduct by the member that the section protects e.g.
• failing to obey a call to take part in industrial action.
• being or not being a member of another union
• working with non-members or for an employer.

It is noteworthy that, in contrast to the law on unfair dismissal which concerns itself solely with the main or principal reason for dismissal, this provision (like its GB counterpart) inhibits unions’ disciplinary procedures where a prohibited ground forms even a subsidiary and minor element in the grounds for disciplinary action.

More fundamentally, this provision infringes trade union rights to autonomy and undermines a union’s efficacy in a way that breaches article 11. The ratio of the ECHR judgment applies equally to the unjustifiable discipline jurisdiction conferred by the 1995 Order on Industrial Tribunals.

Implications for Fair Employment and Treatment (NI) Order 1998

Paragraph 3.6 refers to the Fair Employment and Treatment (NI) Order (1998). It is our view that insofar as Article 23 is inconsistent with the decision of the ECHR decision in ASLEF -v- UK, it should be amended.

Q3: If the Department’s proposal at Q2 is adopted; do you consider that there should there be additional safeguards to protect the rights of individual union members and to guard against potential abuse by unions? If ‘Yes’, why ?

As already indicated, we see no need for further legislation. The Certification Officer’s jurisdiction for complaints of breaches of unions’ disciplinary rules works well and is explicitly designed to guard against abuse by unions.

Q4: Do you have any other comments on this issue or any views or information which could influence the conclusions of the Partial Regulatory Impact Assessment, Equality Impact Assessment or Human Rights Impact Assessment (See Section 6) ?

No further comments



1. Donations to trade union political funds

Q1: What are your views on the effectiveness of the current ‘contracting in’ arrangements in NI? What evidence do you have to support your views.

It is our understanding that the differences between the legislation in GB and Northern Ireland are long standing dating back to the mid 20th century and were based on a determination by the Stormont government to limit the growth of the Northern Ireland Labour Party through potential financial support from the trade union movement.

We are advised by the Irish Congress of Trade Unions that the current arrangements are ineffective and have served to limit the potential participation of trade unions in political matters in Northern Ireland.

It is the formal policy of the Irish Congress of Trade Unions that the situation in Northern Ireland in relation to political funds be brought into line with that in GB and the Republic of Ireland (where union members must also contract out). The law should be changed.

2. Exclusion from a trade union

Q1: What are your views on the differences between GB law and the NI position regarding exclusion from a trade union? What evidence is there to support your views?

We have no comment on this matter in the light of our view as set out above that Article 38 of the Trade Union and Labour Relations (NI) Order 1995 should be repealed in its entirety.

Thompsons McClure
September 2008