European Court of Human Rights

On 29 January, the President instructed the Registrar to obtain certain documents from the Commission and from the Government. These documents were produced on 4 and 19 February, respectively.

Some further documents were filed by the Government on 27 February.

There appeared before the Court:

- for the Government:

       Mr. D. EDWARDS, Legal Counsellor,

                            Foreign and Commonwealth Office,                            Agent,

       Sir Ian PERCIVAL, Q. C., Solicitor-General,

       Mr. S. BROWN, Barrister-at-Law,

       Mr. N. BRATZA, Barrister-at-Law,                                             Counsel,

       Mr. H. STEEL, Law Officers’ Department,

       Mr. J. BILLAM, Department of Employment,

       Mr. C. TUCKER, Department of Employment,

       Mr. N. MELLISH, Department of Employment,                           Advisers;

- for the Commission:

       Mr. J. FAWCETT,

       Mr. G. SPERDUTI,

       Mr. J. FROWEIN,                                                                      Delegates,

       Mr. D. CALLCUTT, Q. C., and Mr. C. KOLBERT and Mr. C. MITCHELL-HEGGS, Barristers-at-Law,

                            assisting the Delegates (Rule 29 par. 1, second sentence,    

                            of the Rules of Court).

The Court heard the Delegates and those assisting them, Sir Ian Percival for the Government and also, in accordance with its decision of 3 March, Lord Wedderburn of Charlton, Barrister-at-Law, Professor of Law in the University of London, for the Trades Union Congress.

- on 3 April 1981, replies by the Government to certain questions put by the Court at the hearings to those appearing before it;

- on 6 April 1981, replies by the applicants to the aforesaid questions, together with their observations on the submissions made by Sir Ian Percival in his address to the Court;

- on 22 April 1981, observations of the applicants on the submissions made by Lord Wedderburn in his address to the Court and on issues of fact contained in the "memorial" mentioned at paragraph 10 above;

- on 11 May 1981, comments by the Government on the aforesaid observations filed on 6 April.

The documents emanating from the applicants were transmitted to the Court by the Commission’s Delegates.

AS TO THE FACTS

I. GENERAL BACKGROUND AND DOMESTIC LAW

A. Closed shops and dismissal from employment

In general

In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960’s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees.

The law in force until 1971

The Royal Commission on Trade Unions and Employers’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal.

The Industrial Relations Act 1971

The law in force at the time of the events giving rise to the applicants’ complaints

(a) set out - by reference to the concept of "union membership agreement", which it defined - the circumstances in which a closed shop situation was to be regarded as existing;

(b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal;

(c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected

(i) on grounds of religious belief to being a member of any union whatsoever; or

(ii) on any reasonable grounds to being a member of a particular union.

Subsequent legislative developments

The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if:

(a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or

(b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or

(c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith.

A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations.

B. Other relevant matters concerning trade union membership

The Congress adopted in 1939 a series of morally binding recommendations ("the Bridlington Principles") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it.

II. BRITISH RAIL AND ITS CLOSED SHOP AGREEMENT

The matter was, however, revived in July 1975 when British Rail concluded a further agreement with the same unions. It was provided that as from 1 August 1975 membership of one of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were "incorporated in and form[ed] part of" each contract of employment. Like other staff of British Rail, Mr. Young, Mr James and Mr. Webster had, it appears, been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation.

The membership requirement did not apply to "an existing employee who genuinely objects on grounds of religious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to being a member of a particular Trade Union". The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions.

A further notice of September 1975 stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions. The notice added that "confining exemption only to religious grounds depends upon the passing through Parliament of the Trade Union and Labour Relations (Amendment) Bill" and that staff would be advised further on this point. As recorded in paragraph 23 above, the Amendment Act came into force on 25 March 1976.

On the same date, a further agreement between British Rail and the railway unions came into effect. It was in identical terms to the July 1975 agreement, except that the words "or on any reasonable grounds to being a member of a particular Trade Union" (see paragraph 29 above) were omitted.

It appears that, prior to the conclusion of the 1975 closed shop agreement, between 6,000 and 8,000 British Rail employees, out of a total staff of 250,000, were not already members of one of the specified unions. In the final event, 54 individuals were dismissed for refusal to comply with the membership requirement.

The stated objects of NUR included the following:

"... to secure the complete organisation of all workers employed by any Board, Company or Authority in connection with railways and other transport and ancillary undertakings thereto in the United Kingdom; to improve the conditions and protect the interests of its members; ... To further, if and when and so far as the same shall be or become a lawful object of a Trade Union, the interests of members by representation in Parliament and on local governing bodies, and to employ the Political Fund of the Union procuring such representation. To work for the suppression of the capitalist system by a Socialistic order of society. ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade Unionists in social science in, and to take part in, the political and industrial life of the Labour Movement. ..."

The stated objects of TSSA included the following:

"(a) To organise the whole of the Clerical, Supervisory, Administrative, Professional and Technical employees in all Departments of any British or Irish Railway undertaking, or of any Railway Carting Agency, associated or other undertaking as defined in Rule 2.

(b) To improve the conditions and protect the interests of its members.

 ...

(g) To establish a Fund, or Funds, including the Political Fund referred to in Rules 45 and 46.

...

(i) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen.

(j) To provide financial assistance and to lend money, with or without interest or other equivalent, to any such organisation (incorporated or not incorporated) as the Executive Committee may deem advisable in the interests of or for carrying out the objects of the Association, and so far as the law for the time being in force may permit.

 ..."

The objects of both unions also included the furtherance of the political objects specified in section 3 of the Trade Union Act 1913 and their Rules contained provisions reflecting that Act’s requirements in the matter of a political fund (see paragraph 28 above). In the case of TSSA, payments from its political fund could not be made unless the beneficiary was an individual member of the Labour Party or the purpose of the payment was in support of Labour Party policy; its general funds could be used for providing financial assistance for political purposes other than the "political objects" listed in the 1913 Act.

III. FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS

A. Mr. Young

The applicant objected, though not on grounds of religious belief, to being a member of any trade union and in particular of TSSA or NUR. He believed that union membership should be a matter of personal choice based on conscience and political conviction. His reasons for not wanting to join TSSA, which he said also applied to NUR, may be summarised as follows:

(a) he did not subscribe to the political views of TSSA;

(b) money from the main union fund was used to produce a monthly newspaper biased in favour of the Labour Party and he had not received sufficient assurances that that fund was not utilised for other political purposes;

(c) he disapproved of TSSA’s support for nationalisation of industry and its forcing of inflationary pay awards; he also objected to being obliged to participate in strikes, this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole;

(d) TSSA showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees.

By letter of 27 May, British Rail advised the applicant that the claim had been disallowed and gave him notice of dismissal - of one month, in accordance with his contract - expiring on 26 June 1976.

B. Mr. James

On 23 February 1976, he received a dismissal notice stating that, by reason of his non-compliance with the July 1975 agreement, his services would no longer be required as from 5 April 1976.

C. Mr. Webster

(a) he was opposed to the trade union movement as it currently operated since it was unrepresentative, had detrimental effects - particularly through unjustified collective wage demands - in the economic, industrial and social spheres, and did not act in the best interests of workers or of the country in general; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere;

(b) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice, which practice would not remedy the disabilities inherent in the trade union system.

On 3 June 1976, Mr. Webster received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on 28 August 1976.

PROCEEDINGS BEFORE THE COMMISSION

In its report of 14 December 1979 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion:

- by fourteen votes to three, that there had been a violation of Article 11 (art. 11);

- that it was not necessary to deal separately with the issues arising under Articles 9 and 10 (art. 9, art. 10);

- by eight votes to two, with two abstentions, that there was no additional breach of Article 13 (art. 13).

The report contains four separate opinions.

FINAL SUBMISSIONS MADE TO THE COURT

47. At the hearings on 4 March 1981, the Government maintained the submissions set out in their memorial, whereby they had requested the Court:

"(I) With regard to Article 11 (art. 11)

(i) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 11 (art. 11);

alternatively, if the request at (i) should be rejected, then

(ii) to decide and declare that the responsibility of the United Kingdom, if any, under the Convention in respect of the termination of the contracts of employment of the three applicants is engaged exclusively by reason of the enactment of the Acts of 1974 and 1976 and is not engaged on the ground that British Rail is an organ of the State or on the ground that the Government of the United Kingdom is to be regarded as the employer of British Rail or of the applicants.

(2) With regard to Articles 9 and 10 (art. 9, art. 10)

(i) to decide and declare that the provisions of Articles 9 and 10 (art. 9, art. 10) of the Convention are inapplicable in the circumstances of the present cases;

alternatively, if the request at (i) should be rejected, then

(ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Articles 9 and 10 (art. 9, art. 10) of the Convention.

(3) With regard to Article 13 (art. 13)

(i) to decide and declare that Article 13 (art. 13) of the Convention has no application in the present cases in that no rights or freedoms set forth in the Convention were involved or affected by reason of the dismissal of the applicants from their employment;

alternatively,

(ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 13 (art. 13) of the Convention additional to any breach of Article 11 (art. 11) of the Convention."

AS TO THE LAW

I. PRELIMINARY: RESPONSIBILITY OF THE RESPONDENT STATE

The Government conceded that, should the Court find that the termination of the applicants’ contracts of employment constituted a relevant interference with their rights under Article 11 (art. 11) and that that interference could properly be regarded as a direct consequence of TULRA and the Amendment Act, the responsibility of the respondent State would be engaged by virtue of the enactment of that legislation.

A similar approach was adopted by the Commission in its report.

II. THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

I. THE EXISTENCE OF AN INTERFERENCE WITH AN ARTICLE 11 (art. 11) RIGHT

Whilst the majority of the Commission stated that it was not necessary to determine this issue, the applicants maintained that a "negative right" was clearly implied in the text. The Government, which saw the Commission’s conclusion also as in fact recognising at least a limited negative right, submitted that Article 11 (art. 11) did not confer or guarantee any right not to be compelled to join an association. They contended that this right had been deliberately excluded from the Convention and that this was demonstrated by the following passage in the travaux préparatoires:

"On account of the difficulties raised by the ‘closed-shop system’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’ which features in [Article 20 par. 2 of] the United Nations Universal Declaration" (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the "Travaux Préparatoires", vol. IV, p. 262).

The Court recalls, however, that the right to form and to join trade unions is a special aspect of freedom of association (see the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 17, par. 38); it adds that the notion of a freedom implies some measure of freedom of choice as to its exercise.

Assuming for the sake of argument that, for the reasons given in the above-cited passage from the travaux préparatoires, a general rule such as that in Article 20 par. 2 of the Universal Declaration of Human Rights was deliberately omitted from, and so cannot be regarded as itself enshrined in, the Convention, it does not follow that the negative aspect of a person’s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, the judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5, the Golder judgment of 21 February 1975, Series A no. 18, p. 19, par. 38, and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, par. 60).

Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention.

However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.

In the Court’s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 (art. 11). For this reason alone, there has been an interference with that freedom as regards each of the three applicants.

The Government submitted that the relevant legislation (see paragraph 26 above) not only did not restrict but also expressly protected freedom of action or choice in this area; in particular, it would have been open to the applicants to form or to join a trade union in addition to one of the specified unions. The applicants, on the other hand, claimed that this was not the case in practice, since such a step would have been precluded by British Rail’s agreement with the railway unions and by the Bridlington Principles (see paragraph 27 above); in their view, joining and taking part in the activities of a competing union would, if attempted, have led to expulsion from one of the specified unions. These submissions were, however, contested by the Government.

Be that as it may, such freedom of action or choice as might have been left to the applicants in this respect would not in any way have altered the compulsion to which they were subjected since they would in any event have been dismissed if they had not become members of one of the specified unions.

Mr. Young and Mr. Webster had objections to trade union policies and activities, coupled, in the case of Mr. Young, with objections to the political affiliations of TSSA and NUR (see paragraphs 34 and 43 above). Mr. James’ objections were of a different nature, but he too attached importance to freedom of choice and he had reached the conclusion that membership of NUR would be of no advantage to him (see paragraph 37 above).

The protection of personal opinion afforded by Articles 9 and 10 (art. 9, art. 10) in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association as guaranteed by Article 11 (art. 11). Accordingly, it strikes at the very substance of this Article (art. 11) to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions.

In this further respect, the treatment complained of - in any event as regards Mr. Young and Mr. Webster - constituted an interference with their Article 11 (art. 11) rights.

2. The existence of a justification for the interference found by the Court

The Court has nevertheless decided that it should examine this issue of its own motion, certain considerations of relevance in this area being contained in the documents and information with which it has been furnished.

The Court does not find it indispensable to determine whether the first two conditions were satisfied, these being issues which were not fully argued before it. It will assume that the interference was "prescribed by law", within the meaning of the Convention (see the above-mentioned Sunday Times judgment, pp. 30-31, par. 46-49), and had the aim, amongst other things, of protecting the "rights and freedoms of others", this being the only of the aims listed in paragraph 2 that might be relevant.

Any comment on these arguments would be out of place in the present case since the closed shop system as such is not under review (see paragraph 53 above).

Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful" or "desirable" (p. 22, par. 48). The fact that British Rail’s closed shop agreement may in a general way have produced certain advantages is therefore not of itself conclusive as to the necessity of the interference complained of.

Secondly, pluralism, tolerance and broadmindedness are hallmarks of a "democratic society" (p. 23, par. 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court.

Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (p. 23, par. 49).

All these factors suggest that the railway unions would in no way have been prevented from striving for the protection of their members’ interests (see the above-mentioned National Union of Belgian Police judgment, p. 18, par. 39) through the operation of the agreement with British Rail even if the legislation in force had not made it permissible to compel non-union employees having objections like the applicants to join a specified union.

There has accordingly been a violation of Article 11 (art. 11).

III. THE ALLEGED VIOLATION OF ARTICLES 9 AND 10 (art. 9, art. 10)

Having taken account of these Articles (art. 9, art. 10) in the context of Article 11 (art. 11) (see paragraph 57 above), the Court, like the Commission, does not consider it necessary to determine whether they have been violated in themselves.

IV. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

V. THE APPLICATION OF ARTICLE 50 (art. 50)

The Government confined themselves to observing that the question of the application of Article 50 (art. 50) was not relevant at this stage.

FOR THESE REASONS, THE COURT

1. Holds by eighteen votes to three that there has been a breach of Article 11 (art. 11) of the Convention;

2. Holds unanimously that it is not necessary also to examine the case under Articles 9 or 10 (art. 9, art. 10);

3. Holds unanimously that it is also not necessary to determine whether there has been a violation of Article 13 (art. 13);

4. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;

(a) accordingly reserves the whole of the said question;

(b) refers the said question back to the Chamber under Rule 50 par. 4 of the Rules of Court.

Done in English and in French, the English text being authentic, at the Human Rights Building, Strasbourg, this thirteenth day of August, one thousand nine hundred and eighty-one.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

The following separate opinions are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court:

- concurring opinion of Mr. Ganshof van der Meersch, Mrs. Bindschedler-Robert, Mr. Liesch, Mr. Gölcüklü, Mr. Matscher, Mr. Pinheiro Farinha and Mr. Pettiti;

- concurring opinion of Mr. Evrigenis;

- dissenting opinion of Mr. Sørensen, joined by Mr. Thór Vilhjálmsson and Mr. Lagergren.

G. W.

M.-A. E.