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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Council of Civil Service Unions v the United Kingdom - 11603/85 [1987] ECHR 34 (20 January 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/34.html
Cite as: (1988) 10 EHRR CD269, [1987] ECHR 34, 10 EHRR CD269
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AS TO THE ADMISSIBILITY OF
by the Council of Civil Service Unions,
Christopher BRAUNHOLTZ, Jack HART, Ann DOWNEY,
Jeremy WINDUST, Dennis MITCHELL and David McCAFFREY
against the United Kingdom
20 January 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 May 1985 by
the Council of Civil Service Unions, Christopher BRAUNHOLTZ, Jack HART,
Ann DOWNEY, Jeremy WINDUST, Dennis MITCHELL and David McCAFFREY against
the United Kingdom and registered on 27 June 1985 under file No.
11603/85;
Having regard to:
- the first report of August 1985 provided for in Rule 40 of the Rules of Procedure of the Commission;
- the Commission's decision of 9 October 1985 to bring the application to the notice of the respondent Government and invite them to submit written observations on the admissibility and merits of the application;
- the observations submitted by the respondent Government on 22 January 1986 and the reply thereto submitted by the applicants on 7 May 1986;
- the second report of June 1986 provided for by Rule 40 of the Rules of Procedure;
- the Commission's decision of 17 July 1986 to invite the parties to a hearing on the admissibility and merits of the application;
- the submissions of the parties at the hearing on 20 January 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they have been submitted by the parties may be summarised as follows.
The first applicant is a trade union registered in the United Kingdom. The other applicants are all British citizens. The second applicant, born in 1929, resides in Cheltenham, Gloucestershire, and the third applicant, born in 1926, resides in Taunton, Somerset. Both are former civil servants. The fourth and fifth applicants, born in 1957 and 1952, respectively, reside in Cheltenham and are civil servants employed at Government Communications Headquarters. The sixth applicant, born in 1937 and resident in Cheltenham, is a former civil servant. The seventh applicant, born in 1944, is a civil servant resident in Gunnislake, Cornwall. Before the Commission all applicants are represented by Messrs. Lawford and Co., solicitors practising in London, who are instructing Messrs. A. Lester QC, R. Drabble and D. Pannick.
I.
Government Communications Headquarters (GCHQ) is a civilian- manned branch of Government established in its present form in 1947. It has the function of ensuring the security of the United Kingdom's military and official communications and to provide signals intelligence for the Government. The main establishment is at Cheltenham, where there are approximately 4,000 employees. Smaller branches of the organisation exist in the United Kingdom and elsewhere. The total number of employees who are all civil servants is approximately 7,000. The fact that GCHQ was concerned with national security was disclosed publicly in a newspaper article in 1978 and first acknowledged by the Government on 12 May 1983 in connection with offences against the 1911 Official Secrets Act by a person not relating to the present application.
From 1947 until 1984 staff at GCHQ were permitted to become members of a trade union. On 31 December 1982, there were 4,454 paid up trade union members at GCHQ.
The first applicant was formed as a trade union in May 1980. It represented its members, inter alia, in pay negotiations and in discussions over conditions of service. It is a coordinating body of nine trade unions, six of which had members at GCHQ, and is the trade union side of the Civil Service National Whitley Council, which is responsible for determining the pay and conditions of service of all non-industrial civil servants, including GCHQ employees.
II.
The terms and conditions upon which civil servants, in theory members of the Sovereign's staff, are employed and continue in office are governed by royal prerogative. Since 1963, by Order in Council, these prerogative powers have been vested in the Minister for the Civil Service. In this respect, Article 4 of the 1982 Civil Service Order in Council states:
"a) The Minister for the Civil Service may from time to time make regulations or give instructions ... ii) for controlling the conduct of the Service and providing for the classification of all persons employed therein and, so far as they relate to matters other than remuneration, expenses and allowances, the conditions of service of all such persons ... "
The exercise of this prerogative power is restricted in particular by the Employment Protection Act 1975, insofar as it is still in force, and the Employment Protection (Consolidation) Act 1978. Section 138(1), (2) and (4) of the 1978 Act state:
"Application of Act to Crown employment:138(1) Subject to the following provisions of this section, Parts I (so far as it relates to itemised pay statement), II, III (except Section 44), V, VIII and this Part and Section 58 shall have effect in relation to Crown employment and to persons in Crown employment as they have effect in relation to other employment and to other employees.
(2) In this section, subject to sub-sections (3) to (5), 'Crown employment' means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment. ...
(4) For the purposes of this section, Crown employment does not include any employment in respect of which there is in force a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from this section for the purpose of safeguarding national security; and any document purporting to be a certificate so issued shall be received in evidence and shall, unless the contrary is proved, be deemed to be such a certificate ... "
Section 121(4) of the 1975 Act states:
"For the purposes of this section, Crown employment does not include any employment in respect of which there is in force a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from this section for the purpose of safeguarding national security; and any document purporting to be a certificate so issued shall be received in evidence and shall, unless the contrary is proved, be deemed to be such a certificate."
III.
On seven occasions between 13 February 1979 and 14 April 1981 various forms of industrial action were taken at GCHQ, such as one- day strikes; work to rule; and overtime bans. This action generally arose from disputes between the Government and national trade unions over the pay and conditions of service applicable to civil servants. Altogether over 10,000 working days were lost by virtue of this action. At a one-day strike on 9 March 1981, 25% of the staff were involved in such action.
On 22 December 1983 the Prime Minister as Minister for the Civil Service directed orally, by virtue of the 1982 Civil Service Order, that the Conditions of Service applicable to civil servants serving GCHQ should be revised so as to exclude membership of any trade union other than a Departmental Staff Association approved by the director of GCHQ.
On 25 January 1984 the Secretary of State for Foreign and Commonwealth Affairs signed and issued two certificates under Section 138(4) of the 1978 Act and the corresponding Section 121(4) of the 1975 Act, in order to remove the rights granted by those Acts to all GCHQ staff. In a ministerial statement in the House of Commons of the same day he stated inter alia:
"The Government fully respects the right of civil servants to be members of a trade union, and it is only the special nature of the work of the GCHQ which has led us to take these measures. I can assure the House therefore that it is not our intention to introduce similar measures outside the field of security and intelligence."
On 25 January 1984 GCHQ staff were informed by a General Notice and an accompanying letter that, as a condition of service, they were no longer permitted to be members of any existing trade union other than a Departmental Staff Association. Disciplinary action might be undertaken against anyone involved in industrial action. Staff not wishing to remain at GCHQ were to be given the opportunity to seek a transfer elsewhere in the civil service. If such a transfer was not possible, the respective person would be eligible for premature retirement on redundancy terms. Staff remaining at GCHQ would receive an ex gratia payment of £1,000 in recognition of the loss of rights previously enjoyed.
Subsequent representations by the first applicant to the Government were without success.
On 14 February 1984, the all-Party House of Commons Employment Committee unsuccessfully proposed in a report to the House of Commons that the Government and the civil service unions hold discussions with a view to an agreement which would preserve union membership for GCHQ staff while meeting the Government's objectives.
At present, all staff at GCHQ have accepted the new conditions of service, except 35 persons, including the fourth and fifth applicants, who declined to express an option, and six persons who opted to move but for whom a transfer has not yet been arranged. On 1 May 1985 a departmental staff association was formed at GCHQ by members of staff under the name "Government Communications Staff Federation" (GCSF). Its membership is over 49% of the GCHQ staff.
IV.
On 14 February 1984 the General Council of the Trades Union Congress (TUC), through its General Secretary, acting on its own behalf, complained to the Director General of the International Labour Organisation (ILO) that the United Kingdom Government was in breach of Articles 2-5 and 11 of the 1948 ILO Convention No. 87 on Freedom of Association. Article 2 states in particular:
"Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation."
The Committee of Freedom of Association which was set up to examine complaints from organisations of workers and employees reported on 1 June 1984 that the action of the Government was not in conformity with Convention No. 87. The Report was adopted by the Governing Body of the ILO on 1 June 1984. The Committee again considered the complaint of the TUC in February 1985, whereupon it recommended that the Committee of Experts on the Application of Conventions and Recommendations (the Experts) should examine the legal arguments put forward. The Experts met in March 1985 and published a Report of their proceedings which indicated that the Government's reply did indeed raise complex legal questions on which the International Court of Justice might more appropriately be requested to provide an opinion. The Report of the Experts was considered by the International Labour Conference Committee on the Application of Conventions and Recommendations, and the report of the Conference Committee was put forward for adoption by the Plenary Session of Conference, and concludes with the Conference Committee's hope that "the Government would be able to find appropriate solutions to the problems raised by the application of the Convention".
V.
In January 1984 all individual applicants were employed at GCHQ. The third applicant was then Chairman of the Trade Union Side of the Departmental Whitley Council at GCHQ.
Following the prohibition to join a trade union, the individual applicants applied to the High Court for judicial review, seeking declarations that the General Notice of 25 January 1984 and the accompanying letter were ineffective to vary the conditions of service, and that the two certificates of the same day were invalid.
This application was heard by a single judge of the Divisional Court of the Queen's Bench Division. On 16 July 1984 the judge declared invalid the instructions issued by the Minister for the Civil Service on 22 December 1983.
In its reasoning the judge set out by assuming that the Court had jurisdiction to control the exercise by the Minister for the Civil Service of her power under Article 4 of the 1982 Civil Service Order. The judge also found that the Crown was competent to dismiss a civil servant at will, unless some statutory provision prevented this. It was unnecessary in the present case to resort to ILO Convention No. 87 in view of the fact that there was no doubt about the relevant English law. Moreover, the Prime Minister's instruction on 22 December 1983, although of a general nature and given orally, was a proper instruction under Article 4 of the 1982 Civil Service Order.
However, the judge accepted the applicants' submissions that the Prime Minister's direction of 22 December 1983 and the statutory certificates issued on 25 January 1984 were invalid, as there had been no previous consultation by the Government of the trade unions. The Government had, by means of various regulations, in effect promised to consult about any changes in the conditions of service at GCHQ, and the GCHQ staff had, therefore, a legitimate expectation in this respect. When a decision by Ministers to withdraw the trade union rights was in contemplation, fairness, i.e. natural justice, required that the decision should not finally be made until the staff or their representatives had been consulted.
On 6 August 1984 the Court of Appeal allowed the appeal of the Minister for the Civil Service and set aside the High Court's declaration.
The Court of Appeal first examined its entitlement to supervise the exercise of royal prerogative powers. In this respect the Lord Chief Justice, Lord Lane, found that the actions taken by the Government with regard to trades union membership at GCHQ were actions taken on the grounds of national security. The Ministers were the sole judges of what the national security required and consequently the instruction and certificates were not susceptible to judicial review.
Lord Lane agreed with the previous court that on 22 December 1983 the Prime Minister had in fact been giving instructions "for controlling the conduct of service" and for "providing for ... the conditions of service" within the meaning of Article 4 of the 1982 Civil Service Order, and that the Government's actions had been in accordance with its international obligations under the ILO Conventions. Insofar as the GCHQ staff had held expectations as to prior consultation, there existed in the various staff regulations restrictions on this requirement. He could understand the Government's anxiety lest by premature disclosure of their plans they might precipitate the very troubles which, by their decision, they were seeking to avoid. Where there existed a conflict between the interests of national security and the freedom of the individual, the balance between the two was for the Home Secretary, rather than for a court of law. On rare occasions, the rights of an individual had to be subordinated to the protection of the realm.
The Court of Appeal then granted the applicants leave to appeal to the House of Lords.
In its judgment of 22 November 1984 the House of Lords unanimously dismissed the appeal.
The five Lords sitting concluded in their respective opinions that the applicants had had a legitimate expectation that the Minister would consult them before issuing the instructions of 22 December 1983. However, the work at GCHQ was a matter of national security, and that security would have been seriously compromised, had industrial action taken place similar to that encountered between 1979 and 1981. Consultation prior to the oral instructions of the Prime Minister would have served further to reveal the vulnerability of GCHQ to such action. For instance, a former director at GCHQ, when giving evidence on 8 February 1984 to the House of Commons Employment Committee, recalled that one of his subordinates had sought to explain to the general secretary of one of the trade unions the serious consequences of industrial action. In reply he had been thanked for telling where the Government could be hurt most. The Government had accordingly been justified in the interests of national security in avoiding industrial action and in issuing the instructions without prior consultation with the applicants.
1. The applicants complain under Article 11 of the Convention that the United Kingdom Government have removed the right of individual employees at GCHQ to belong to a trade union, and have deprived these unions of any role in industrial relations at GCHQ.
The applicants submit that the Government's action was not "prescribed by law" within the meaning of Article 11 para.
2. While the 1975 and 1978 Acts set out the circumstances in which the respective certificates may be issued, the latter alone would still have left the GCHQ employees with the contractual freedom to belong to a trade union. It was for this reason that the conditions of service had to be changed. Article 4 of the Civil Service Order does no more than confer a discretion on the Minister with no guidelines as to how this discretion should be exercised.
The Government's action was also not "necessary in a democratic society in the interests of national security" within the meaning of Article 11 para. 2. No industrial action occurred between 1981 and 1984, and it is difficult to see a "pressing social need" for the action. In any event, the blanket removal of all rights was disproportionate to the end to be achieved. Thus, some of the other 45,000 civil servants are also in highly sensitive positions. Yet only the GCHQ employees have been deprived of their trade union rights.
The applicants submit that their application is not substantially the same as that presented by the TUC to the ILO within the meaning of Article 27 para. 1 (b) of the Convention.
2. The applicants complain under Article 13 of the Convention that there was no effective remedy under domestic law for the alleged breach of Article 11 para. 2, by which a municipal court can judge the validity of a particular administrative action. No remedy was available to them which was amenable, sufficient, and likely to be effective, for instance in respect of their complaint concerning the oral instruction of 22 December 1983, which changed their conditions of service.
The application was introduced on 9 May 1985 and registered on 27 June 1985.
On 9 October 1985 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42, para. 2, sub-para. b of the Rules of Procedure.
The Government's observations were submitted on 22 January 1986 and the applicants' reply thereto on 7 May 1986.
On 17 July 1986 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.
At the hearing which was held on 20 January 1987 the parties were represented as follows:
For the respondent Government
Mr. M.C. Wood Agent, Foreign and Commonwealth Office
Mr. Robert Alexander QC Barrister, Counsel
Mr. Nicholas Bratza Barrister, Counsel
and four advisers
For the Applicants
Mr. Anthony Lester QC Barrister, Counsel
Mr. David Pannick Barrister, Counsel
Mr. B. Hooberman Solicitor, Lawford & Co., Adviser
The applicants Mrs. Downey and Messrs. Braunholtz, Hart, Windust, Mitchell and McCaffrey were also present.
The applicant Council of Civil Service Unions were represented as follows:
Mr. P. Jones Secretary
Mr. A. Christopher Chairman of the Major Policy Committee
SUBMISSIONS OF THE PARTIES
The parties have presented extensive written and oral submissions which may be summarised as follows:
A. The respondent Government
I. The Facts (see THE FACTS above)
GCHQ is one of the security and intelligence agencies on which the national security of the United Kingdom and to some degree of the allies depends. The present case has direct effects on the national security interests of the country.
Between February 1979 and April 1981 industrial action was taken at GCHQ on the following seven occasions: first, a one-day strike on 23 February 1979 followed by selective action continuing until 2 April 1979; second, a one-day strike on 22 June 1979 followed by selective action until 25 July; third, in September 1979, a work to rule and overtime ban by industrial staff; fourth, between 20 December 1979 and 13 February 1980 industrial action in support of a pay dispute by station radio officers; fifth, on 14 May 1980, involvement by GCHQ staff in a TUC day of action; sixth, a protest meeting on 27 November 1980 against the suspension of the existing pay arrangements; and seventh, a one-day strike on 9 March 1981, which resulted in the virtual closure of part of GCHQ, followed by various forms of industrial action until 14 April 1981.
In the circumstances of the industrial disputes which took place between 1979 and 1981 Ministers were satisfied that national unions were pressing GCHQ staff to place their loyalty to their union above their loyalty to the service to the detriment of national security and that industrial disruption of the kind which took place could do very real damage to national security.
As a result the Government considered in 1982 the measures which could be taken to prevent such action recurring in the future. Only in 1983, following the conviction of a former member of GCHQ of offences under the 1911 Official Secrets Act, was the intelligence role of GCHQ for the first time officially acknowledged. In December 1983, the Ministers concerned decided that the conditions of service of GCHQ staff should be brought into line with the arrangements prevailing in the other security and intelligence agencies, which had not been available as a target for trade union disruption by ensuring that national unions ceased to play any part in its affairs. It was also decided for security reasons that GCHQ staff should cease to have access to industrial tribunals under the 1978 Act.
The Ministers concerned did not consider that there was any legal obligation on them to consult the national unions or the staff involved before reaching the decision to take the steps mentioned above. To have entered into such consultations would have served to bring out the vulnerability of areas of operations to those who had shown themselves ready to organise disruption, and consultation with individual members of staff at GCHQ would have been impossible without involving the national unions. Finally, the importance of the decision was such as to warrant its first being announced in Parliament.
During the subsequent meetings between the first applicant and other unions with the Government, the unions accepted that the certificates signed by the Secretary of State should stand but urged that a no-disruption agreement would provide adequate safeguards. The Ministers nevertheless rejected the proposals as not providing sufficient guarantee that conflicting pressures would not produce difficulties in the future. Support for this conclusion is taken from the fact that the draft no-disruption agreement, which had been tabled by the first applicant, was subsequently repudiated by two of the national unions at their 1984 annual conferences.
II. Domestic Law and Practice (see THE FACTS above)
Civil servants are servants of the Crown. The civil service is regulated primarily under the Royal Prerogative, subject, however, to a number of qualifications. In 1920 the present pattern emerged under which a central department, now in part the Minister for the Civil Service, has been given power by the Sovereign through successive Orders in Council to give instructions or make regulations for providing for terms of conditions of service of the Home Civil Service.
Pursuant to the powers conferred by Article 4 of the 1982 Civil Service Order in Council, regulations and instructions have been made in relation to the Home Civil Service as a whole and are consolidated in the Civil Service Pay and Conditions of Service Code (the Code). The Code permits civil servants as a whole to belong to a trade union or a staff association and applies to all Home Civil Servants. Consistently with the Code and subject to particular instructions under the Civil Service Order in Council, Government Departments may make rules or give instructions for controlling the conduct of their establishment and defining the condition of the service of their staff. Departmental regulations or rules are generally contained within a Department's own Handbook. The conditions there set out may be supplemented from time to time by General Notices. Pursuant to these provisions, Staff Regulations have been in force at GCHQ. Under Section P provision was made for membership of the appropriate staff association or trade union and for consultation between management and staff in all matters of common interest.
The generality of the powers contained in the Order in Council is limited by the 1975 Employment Protection Act, insofar as it is still in force, and the 1978 Employment Protection (Consolidation) Act, which contain provisions relating to trade unions and membership of trade unions.
III. As to the conditions of Article 27 para. 1 (b) of the Convention
The Government are content to leave the issue under Article 27 para. 1 (b) to the Commission in respect of the complaint under Article 11 of the Convention and do not request it to reach any particular conclusion thereon.
There is a clear similarity of scope and purpose between the relevant provisions of the European Convention and the ILO Convention, and the complaints made to the ILO and to the Commission arise out of the same facts. Moreover, the substance of the complaint made under the two Conventions is identical, namely that the Government have removed the right of civil servants engaged at GCHQ to belong to a trade union of their choice in contravention of the United Kingdom's international obligations under each Convention. Finally, the particular provisions of Article 11 para. 2 do not provide the applicants with any new grounds for complaint before the Commission which are not available to the applicants in the proceedings before the ILO. There is no requirement in the provision that the particular procedure involved should inevitably lead, or be pursued, to an enforceable decision of a court.
The fact that the TUC application and the present application are not identical is not a conclusive factor for the purposes of Article 27 para. 1 (b). In the present case, not only is the first applicant a member of the TUC, but it is plain on the face of the TUC's application that it is made with the full concurrence of the first applicant. There is nothing to have prevented the first applicant, as "an industrial association of workers" within the terms of Article 24 of the Constitution of the ILO, itself bringing a complaint to the ILO. That the TUC instead lodged the complaint was no doubt for the purpose of demonstrating that this was an issue of national concern.
IV. As to Article 11 of the Convention
a. "Prescribed by law"
The Government refer to the Court's cases regarding the Sunday Times (judgment of 26 April 1979, Series A no. 30), Silver and Others (judgment of 25 March 1983, Series A no. 61) and Malone (judgment of 2 August 1984, Series A no. 82, para. 66 et seq.). The requirement "prescribed by law" in Article 11 para. 2 as explained by the Court is amply satisfied in respect of the restrictions imposed on the applicants' right to freedom of association.
It is clear that the giving of instructions by the Minister for the Civil Service and the issue of certificates under the 1975 and 1978 Acts were both lawful and had a statutory legal basis in domestic law. As to the former, Article 4 of the Civil Service Order in Council 1982 expressly confers powers upon the Minister for the Civil Service. The lawfulness of the exercise of the powers was upheld by all the respective courts. As to the latter, the power of the Secretary of State to issue certificates is expressly conferred by Section 121(4) of the 1975 Act and Section 138(4) of the 1978 Act. The present application contains no suggestion that the certificates had no statutory legal basis or were other than lawfully and validly issued.
The present case likewise satisfies the requirements of foreseeability and accessibility. The 1982 Order in Council and the 1975 and 1978 Acts are unquestionably accessible, being contained in published legislation. There is also no doubt that the relevant provisions of the 1975 and 1978 Acts are sufficiently clear and precise in their terms to give those affected an adequate indication as to the circumstances in which and the conditions on which the Secretary of State is empowered to issue certificates.
The Government accept that the 1982 Order in Council confers a discretion on the Minister for the Civil Service. It is not, however, accepted that in respect of conditions of service relating to union membership that discretion is unfettered or that the scope of the discretion or the manner of its exercise is so imprecisely defined that those affected by its exercise are given inadequate protection against arbitrary interference. The proceedings before the domestic courts made clear not only that the exercise of the discretion under Article 4 was subject to the supervisory jurisdiction of the courts but that the exercise of the prerogative power was now restricted by statute in certain respects. In particular, by virtue of the provisions of the 1975 and 1978 Act a civil servant is normally entitled in law to be a member of a trade union, may not be legally dismissed because of such membership, and is entitled to make a complaint of unfair dismissal to an Industrial Tribunal if he is dismissed for this reason. Accordingly, the power of the Minister in the exercise of her discretion is specifically constrained by the provisions of the 1975 and 1978 Acts except in the limited and clearly defined circumstances in which a certificate may be issued under the Acts, namely where the exception of the civil servant from the protection of the Acts is required for the purpose of safeguarding national security. Of course, GCHQ is a vital part of the security of the United Kingdom.
The measures were not arbitrary, being based on considerations of national security. In this connection, it is relevant to observe that in the domestic proceedings the applicants did not allege that the action of the Minister for the Civil Service or of the Secretary of State was liable to judicial review on the grounds that it was arbitrary or on grounds of "irrationality". Moreover, the measures taken were both in line with the Convention as a whole and with one of the particular purposes of restrictions on the right to freedom of association permitted by para. 2 of Article 11 of the Convention.
Substantially the same considerations apply to the requirement in the second sentence of Article 11 para. 2. For the reasons given above the "restrictions" imposed were "lawful" in that there was a statutory legal basis for the restrictions under domestic law and the lawfulness of the restrictions was specifically upheld in the domestic courts; the provisions under which the restrictions were imposed satisfied the requirements of accessibility and foreseeability; the restrictions, being founded on considerations of national security, were not arbitrary and were consistent with the particular purpose of the restrictions in Article 11 para. 2.
b. "Necessary in a democratic society"
The restrictions imposed on the applicants' rights were justified under Article 11 para. 2 as being "necessary in a democratic society in the interests of national security". The purpose of the restrictions is consistent with the legitimate purpose set out in para. 2 of protecting the interests of national security of which GCHQ forms a vital part. The provisions of Sections 121(4) and 138(4) of the 1975 and 1978 Acts reflected the acknowledged need for particularly sensitive functions of Government to be protected so far as possible from the risk of interference or disruption.
In making their assessment, the national authorities enjoy a margin of appreciation as regards the nature and extent of the restrictions required. The scope of the margin of appreciation varies depending on the nature of the aim which is being pursued in restricting an individual's rights under the Convention. In the field of national security, the margin of appreciation afforded to the State authorities is necessarily a wide one (see the cases of Klass and Others, judgment of 6 September 1978, Series A no. 28, para. 48 p. 23; Leander v. Sweden, Comm. Report 17.5.85, para. 68).
Although wide, the discretion afforded to the national authorities is not unlimited and is subject to the supervision of the Convention organs. The Commission's approach in Leander (ibid. para. 69) is entirely consistent with that adopted by the courts in the domestic proceedings. Members in the House of Lords made clear that, although the precise requirements of national security were matters on which the Government, rather than the courts, had access to the information necessary to make a judgment, it was for the Government to produce evidence that their decisions were based on considerations of national security: a mere assertion that questions of national security were involved would not be sufficient to exclude review by the domestic courts.
In the present case, it is perfectly plain from the statements of the unions that their industrial action was designed to disrupt operations at GCHQ and hurt the Government. A moral pressure exists for the trade union members to follow the call to strike, even if, as in the present case, the strike did not concern GCHQ at all. There is undisputed evidence that over 10,000 working days were lost at GCHQ as a result of the industrial action and that, at its worst, on 9 March 1981, 25% of the staff at GCHQ were involved and parts of the organisation were virtually shut down as a result. The Government alone is in a position to appreciate the effects of the industrial action.
Moreover, the lapse of time which occurred between the events in question and the measures taken in January 1984 in no sense suggests that the measures were other than a genuine response to a pressing social need. Until the public acknowledgement of GCHQ's functions in May 1983, the Government concluded that the disadvantages associated with the public disclosure of GCHQ's role outweighed the undoubted need to take measures to prevent a recurrence of the disruption of GCHQ's operations by industrial action. When the role of GCHQ was for the first time officially acknowledged, a full reappraisal could be made of the measures required to prevent a recurrence of the serious threat to national security proposed by any disruption of the operations at GCHQ.
The measures taken were not disproportionate to the legitimate aim sought to be achieved. The House of Lords found that the Government had legitimately concluded that the interests of national security demanded that no prior notice or consultation should take place. In the domestic proceedings the applicants did not contest that there was evidence on which a reasonable Minister might have taken the view that advance consultation with the unions would have involved the real risk of industrial disruption at GCHQ or, indeed, that the respondent as a reasonable Minister might have taken that view. For the reasons given in the House of Lords the interests of national security justified not only the action taken by the Government but the decision of the Government not to consult with the unions prior to the introduction of the measures in question.
Before January 1984, there was no offer from the trade unions for a no-strike. Thereafter, while giving careful consideration to possible alternative courses of action, the Government concluded that such an agreement would not provide an adequate guarantee that the conflicting pressures on union members employed at GCHQ would not give rise to serious difficulties in the future. This conclusion was reinforced by the unsuccessful attempts in 1981 to persuade the national unions not to involve key areas in their industrial action and their response that they were glad to be told where they could hurt the Government most. Subsequently, the principle of no-disruption agreements was repudiated by two national unions at their 1984 annual conference.
Still stronger objections applied to the suggested alternative course of issuing ad hoc certificates under paragraph 2 of Schedule 9 to the 1978 Act. Paragraph 2 of Schedule 9 provides that, if, on a complaint to an industrial tribunal under Section 24 or 67 of the Act, it is shown that the action complained of was taken for the purpose of national security, the industrial tribunal shall dismiss the complaint. In the Government's view such ad hoc action would only have operated after the event and would not have prevented the interruption in the performance of GCHQ's functions as a result of union-organised action.
It is not accepted that the Government's action was disproportionate in that it placed civil servants at GCHQ in a unique position in comparison with civil servants working in similar fields elsewhere. On the contrary, the arrangements introduced at GCHQ were those which had always existed in other agencies whose operations and activities are primarily concerned with security and intelligence and had the effect of bringing GCHQ into line with those other agencies as regards membership of national trade unions. Indeed, national security required that GCHQ be treated as a whole and industrial action avoided throughout.
It can also not be said that only the work of a small part of the GCHQ staff is essential to the continuous operation of GCHQ, since the latter can only operate as an integral whole.
Steps were taken to secure, so far as possible, a fair balance between the interests of national security and the individual rights and freedoms guaranteed by Article 11 of the Convention. Those serving at GCHQ were given the choice between continuing to remain there under the revised conditions (including receiving payment of £1,000) and requesting a transfer to a similar alternative post elsewhere in the Civil Service with a continuing right of membership of a national trade union. A staff association - the GCSF - has now been formed by members of the staff at GCHQ. It has been statutorily listed as a trade union and has been granted recognition by GCHQ and by the Treasury to represent the staff and negotiate on their behalf. Moreover, many of the rights affected by the measures are paralleled in the Code, the Staff Regulations in force at GCHQ and the Principal Civil Service Pension Scheme.
Insofar as a very small number of staff have rejoined a national trade union, they have been treated compassionately and have not been dismissed, though they have been disciplined. They no longer pose a threat to national security.
c. "Members ... of the administration of the State"
The second sentence of Article 11 para. 2 justifies the imposition of restrictions on the freedoms enjoyed by persons in the three specified categories which could not be justified under the first sentence. The justification provided for in the second sentence is entirely independent of that contained in the first sentence. Otherwise, the provision would be superfluous. The sentence also does more than just highlight the fact that persons in the three categories have special duties and responsibilities which must be taken into account under the first sentence. In a number of European countries persons in the three categories are made subject to special restrictions in relation to union membership and union activities. Indeed, the word "restrictions" is sufficiently wide to introduce a prohibition on membership of a trade union.
The words "members ... of the administration of the State" are wide in scope. Although the phrase would appear to be limited to civil servants employed in central government, it is not limited to high-ranking civil servants such as the Cabinet Secretary and heads of Government Departments. This would be inconsistent with the practice in a number of States of imposing restrictions on persons in the public service by reference not only to their level of responsibility but also to the nature of the services they perform. The function of GCHQ can be defeated just as effectively if the radio officer, or the data processor, or those operating the teleprinters, are on strike. The phrase thus covers also employees whose duties are of a particularly confidential nature or who are in highly sensitive areas of Government.
In the present case the restrictions imposed on the staff of GCHQ were unquestionably lawful restrictions. They were imposed on persons who were employed in central government in work of a highly confidential nature. The second sentence of Article 11 para. 2 is particularly apt to include civil servants at GCHQ, being directly concerned as they are with the security of the State.
Of course, the second sentence does not exclude all supervision by the Convention organs. In relation to the three specified categories the State enjoys wider powers to impose restrictions and the supervisory role of the Convention institutions is correspondingly reduced. Moreover, the right to form or join unions of one's choice is an important aspect of the rights guaranteed by Article 11, but it is in no sense the only aspect of the Article. The Article guarantees both the right to freedom of peaceful assembly and to freedom of association with others. Even the substance of the right to join a trade union was not entirely destroyed. GCHQ staff are free to join the departmental staff association, which serves to protect the interests of all GCHQ.
Finally, the word "lawful" in the second sentence cannot be interpreted in a more extensive manner than "prescribed by law" in the first sentence as requiring that any restrictions should be both prescribed by law and necessary in a democratic society.
V. As to Article 13 of the Convention
It is clear from the Court's case-law that Contracting States are not obliged to ensure within their internal law the effective implementation of any of the provisions of the Convention (see Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no. 20 para. 50 p. 18; Silver and Others, ibid. para. 113 p. 42). Article 13 does not require the incorporation of the Convention rights into domestic law or that domestic courts apply the same standards or criteria, or enjoy the same scope of examination, as provided for in the Convention.
The rights of those in Crown employment to join a trade union as guaranteed under Article 11 are as fully protected as the rights in employment outside the Civil Service. The only power to restrict the rights secured by the 1978 Act in relation to those in Crown employment is the power conferred on the Secretary of State to issue certificates under Section 121(4) of the 1975 Act and Section 138(4) of the 1978 Act.
As is apparent from the domestic proceedings, both the issue of the certificates and the giving of instructions under the Order in Council are subject to judicial review by the English courts. The decision of the House of Lords clearly demonstrates the effectiveness of the remedy of judicial review, establishing as it does the following propositions. First, the exercise of the power under the 1982 Order in Council is subject to judicial review and is to be treated in identically the same way as the exercise of a statutory power. Second, the exercise of the power may be challenged on any of the usual grounds of judicial review, notwithstanding that the field of law to which the decision relates is national security. Third, although the Government is in a better position than the courts to determine the requirements of national security, if a decision is challenged by way of judicial review, it is for the Government to adduce evidence to satisfy the court that the decision under challenge was in fact properly founded on grounds of national security.
Thus the English courts were applying their minds to substantially the same considerations as confront the Commission. The material and evidence before the Commission are also identical to that placed before the domestic courts, including the Report of the Employment Committee on which the applicants heavily rely.
B. The Applicants
I. The facts (see THE FACTS above)
The applicants point out further detriments suffered by trade union members employed within GCHQ. For instance, in April 1986 a payment of £500 or 5% of an individual's salary was made to non trade union staff at GCHQ on account of a proposed re-structuring of grades within GCHQ. Moreover, GCHQ management have declared that trade unionists will not be included in the new grading structure currently being negotiated. This exclusion is expected to result in a financial loss for union members.
General Notice GN100/84 provided that trade union members within GCHQ "will not be promoted while (they) remain at GCHQ". On at least two occasions members have been specifically told that they were being refused promotion because of their union membership. GCHQ trade unionists are also barred from training courses which relate only to GCHQ work.
II. As to the conditions of Article 27 para. 1 (b) of the Convention
ILO Convention No. 87 contains no provisions comparable to Article 11 para. 2. Therefore, the ILO has not already determined the issues under Article 11. Nor would the Commission's consideration of the present application give the appearance of an "appeal". One of the central issues of the present application - whether the conditions specified in Article 11 para. 2 are satisfied - does not arise under the ILO Convention. It was because of the very narrow scope of the issues under ILO Convention No. 87 that the Committee on Freedom of Associatiion stated that the facts were not in dispute. Under Article 11, the facts - e.g., as to whether the decisions complained of were necessary in a democratic society - are very much in dispute between the parties.
The ILO does not provide "another procedure of international investigation or settlement" within the terms of Article 27 para. 1 (b). The word "another" suggests that that provision is concerned with a procedure similar to that provided by the Commission. There is no investigation or settlement of the issues leading to a decision binding on the State.
III. As to Article 11 para. 2 of the Convention
a. "Prescribed by law"
With reference to the Malone case (Eur. Court H.R., judgment of 2 August 1984, Series A no. 82 paras. 66-68), the applicants submit that the powers conferred by Section 121(4) of the 1975 Act and Section 138(4) of the 1978 Act are not "prescribed by law" in that they grant to the State discretionary powers without providing any adequate indication as to the conditions on which such powers relating to trade union rights should be exercised.
The Order in Council which was used to remove the right to belong to a trade union, is part of the very broad and uncertain prerogative powers of the Crown and contains no indication of the purpose for which the powers are to be used. The powers conferred by Article 4 of the Order in Council of 1982 are not "prescribed by law" in that they are unjustifiably broad. They do not provide any adequate indication as to the conditions on which such powers to regulate contractual terms and conditions may be exercised. They contain no provisions for judicial control of the State assertion that national security is at stake. The exercise of such powers in relation to GCHQ staff was also not reasonably foreseeable.
The powers referred to above were further not "prescribed by law" in that they contravened the ILO Convention No. 87, i.e. an international law obligation imposed on the State.
The Government refer to the fact that in the domestic courts the applicants did not pursue an allegation that judicial review should lie on the ground of "irrationality". The applicants emphasise that the requirement that a law be adequately precise in order to avoid arbitrary use, looks to the content of the law and its potential for abuse. It does not primarily look to whether, in the instant case, the law has been abused. In any event, judicial review for "irrationality" is an extremely narrow remedy which does not provide an effective means of ensuring that the power is "prescribed by law" or that the power is exercised fairly or proportionately or for a pressing social need. For that reason, in the domestic legal proceedings such a claim was not pursued.
b. "Necessary in a democratic society"
The applicants first refer to the Court's case-law inter alia in Handyside (judgment of 7 December 1976, Series A no. 24 paras. 48-50 p. 22 et seq.), Tyrer (judgment of 25 April 1978, Series A no. 26 para. 31 p. 15), Sunday Times (judgment of 26 April 1979, Series A no. 30 paras. 59 et seq., p. 35 et seq.; paras. 62 et seq., p. 38 et seq.), Young, James and Webster (judgment of 13 August 1981, Series A no. 44 paras. 63-65), Sporrong and Lönnroth (judgment of 23 September 1982, Series A no. 52 para. 69 p. 25 et seq.) as well as to the Commission's Reports in de Becker v. Belgium (8.1.60, para. 263) and Leander v. Sweden (17.5.85, para. 69).
The case is about a blanket ban on trade union membership and not about industrial action. Conversely, assertions of national security do not create a blanket exception to the Convention guarantees. The Government's interpretation of Article 11 para. 2 would make the latter valueless as a protection of the rights of civil servants throughout Europe. The exception clause in Article 11 para. 2 must be strictly interpreted and other international Human Rights Conventions and the relevant ILO Conventions must thereby be considered. Regard must also be had to the laws and practices of other Convention States, the overwhelming number of which do not as a general practice prevent or prohibit civil servants from belonging to an independent trade union.
The House of Lords was applying a very much weaker test than that of "necessary in a democratic society" which is not recognised in English law. Therefore the conclusions reached in the English domestic courts under domestic law do not provide any guidance on the application of Article 11 para. 2 in this respect.
The traditional British approach has been to encourage trade union membership since it promotes the settlement of industrial disputes. Trade union rights at GCHQ have been encouraged by successive Governments since the inception of GCHQ in 1947. This, and the Government's conduct between the industrial action in 1981 and January 1984 clearly demonstrate that there was no "pressing social need" to deny trade union rights, and that the steps taken were, in any event, not proportionate to any such need for the following reasons.
Thus, the latest industrial action relied on by the Government occurred on 14 April 1981. Yet the Government did not decide to remove trade union rights at GCHQ until December 1983, over 2 1/2 years later. If the Government suggest that it was only in May 1983 that the intelligence role of GCHQ was for the first time officially and explicitly acknowledged, the applicants point out that, as a result of widespread publicity, members of the public well knew of the functions of GCHQ by 1978. The Secretary of State for Foreign and Commonwealth Affairs stated in an affidavit to the English courts that "the activities at GCHQ were made known to the public as early as 1978...". Even after the official acknowledgement of GCHQ's function in May 1983, the Government took no steps to ban trade union membership until January 1984.
The true reason of the delay between April 1981 and January 1984 is that the industrial action now complained of by the Government was not at the time perceived by the Government as constituting any threat which justified the removal of trade union rights. Indeed, the then Secretary of State for Defence stated in April 1981 in Parliament that "up to now industrial actions have not in any way affected the operational capability in any area". Only a small proportion of GCHQ staff - probably less than one fifth - work in areas requiring continuous operations. The examples of industrial action cited by the Government could not affect the continuous nature of operations at GCHQ. Thus:
- The one day strike on 23 February 1979 and the "selective action" thereafter was a minor dispute involving junior grades.
- The one day strike on 22 June 1979 followed by some selective action up to and including 25 July 1979 was part of a national dispute. The participants were technicians involved in work on future projects.
- The work to rule and overtime ban called by industrial staff in September 1979 was called by the TGWU and AUEW, not the first applicant. The participants were "non-craft" industrials (e.g. cleaners).
- The TUC day of action of 14 May 1980 had no impact at all upon the continuous nature of operations at GCHQ.
- The protest meeting on 27 November 1980 was a lunchtime meeting with no conceivable impact on the day to day running of GCHQ.
- The two other incidents were the industrial action by station radio officers between 20 December 1979 and 13 February 1980 and the industrial action in March and April 1981. Advance warning was given to the Government in order to enable alternative arrangements to ensure the continuity of operations. The Government wrongly imply that the industrial action had relevant adverse effects.
The Foreign Secretary himself said before the Parliamentary Select Committee that he did not doubt the loyalty and professional dedication of GCHQ staff. The loss of 10,000 working days is O.1% of total working time over the relevant period. During the same period (February 1979 - February 1984) sick leave accounted for the loss of over 340 days work. No substantive approaches were ever made by management to the trade unions involved stating that such action had in any way threatened the operational efficiency of GCHQ.
The Government failed to consult the trade unions prior to the removal of trade union rights and it failed to act on the February 1984 recommendations of the House of Commons Employment Committee. As the Committee's Report of 14 February 1984 explains, it held an inquiry into the Government's policy on trade union rights at GCHQ immediately following the announcement on 25 January 1984 of the removal of trade union rights. The Committee stated inter alia as follows:
"15. One point which has concerned us is the timing of the action ... We do not consider that the explanation given by the Government justifies the delay ... Does this mean that but for the exposure of a spy, which led to the avowal, the Government would have continued indefinitely to be seriously disturbed about possible threats to national security at GCHQ, and yet be prepared to take no action? They could surely have approached the unions to impress upon them the seriousness of the position and to discuss other ways of avoiding disruption ...20. ... The Prime Minister stressed the need to treat GCHQ like other security services. But there are important differences. The staff of services like MI5 have never enjoyed trade union rights, whereas GCHQ employees always have. To remove those rights, which are also enjoyed by many other civil servants in highly secret posts, from GCHQ is a most serious step, which had provoked strong opposition from the staff and the trade union movement, and caused major political controversy. It is necessary to consider whether the Government could achieve their objectives in some other way."
The Committee noted, at paras. 21-24, the trade unions' willingness to offer guarantees and a legally binding agreement to meet the Government's objectives, including ensuring continuity of operations at GCHQ, without denying trade union rights at GCHQ.
The Government had no pressing social need to remove trade union rights without any consultation or negotiation. The "unproductive informal discussions held earlier at GCHQ" were insignificant. It is denied that any national union other than the first applicant was approached or that the reaction of the first applicant in 1981 justified the absence of negotiations or consultation in 1984. No mention was made in 1981 of any specific operation which should not be disrupted because of potential damage to the effective operation of GCHQ. Had such mention been made, the trade unions would immediately have stopped such action. There is every reason to believe that the trade unions would have behaved in a constructive manner, had such consultations taken place. In this respect it is noted that the Employment Committee referred to above rejected the Government's explanation for non-consultation. The ILO Committee was especially critical of this aspect of the case.
No pressing social need existed in that the Government could have accepted the recommendations of the Employment Committee in relation to this matter and the trade unions' proposals. In the form of an agreement these provisions would have become legally binding for the trade unions. If the proposals did not meet the Government's concerns, then it was for the Government to present further proposals, short of a ban on trade union membership at GCHQ.
In fact the trade unions were willing to offer guarantees, including a binding guarantee of continuity of operations at GCHQ. If the national unions did indeed later vote against the trade union proposals on account of the Government's own conduct, this in no way justifies the Government's previous rejection of those proposals.
The measures were disproportionate to any danger to ban trade union membership. Why prevent staff from exercising the right to freedom of association when the alleged concern was not about trade union membership but about trade union activities? As GCHQ employees who are trade union members will continue to work at GCHQ, and as this is now accepted by the Government, it is clear that there is no pressing social need for the removal of trade union rights.
The creation of a staff association (which has not applied for, and would not be granted, a certificate of independence by the Certification Officer) is not relevant to the question of whether there was a pressing social need or whether the Government acted proportionately to any such need. Rather, Article 11 contains a right to associate in a trade union of one's choice, particularly when the trade unions chosen have been recognised by the employers for this purpose since 1947.
c. "Members ... of the administration of the State"
The second sentence of Article 11 para. 2 should be narrowly construed, providing as it does an exception clause to a basic right under the Convention. It does not exclude persons from protection of their basic rights under Article 11 para. 1 even when the conditions specified in the first sentence of para. 2 are not satisfied. It would be contrary to the objects and purposes of Article 11 to empower States to exercise unlimited powers to regulate trade union rights without supervision by the organs established under the Convention. This would require the clearest language in the Convention.
"Lawful" in the second sentence of Article 11 para. 2 means more than merely authorised by domestic law. It means lawful under the Convention, that is having regard to the aim and object of the Convention to prevent fundamental rights being interfered with other than by means which are prescribed by law and which are necessary in a democratic society (reference to Comm. Reports of 11.5.84 in G. v. Federal Republic of Germany, paras. 94 et seq., and K. v. Federal Republic of Germany, paras. 87 et seq.).
The second sentence ensures that the nature of the work done by those employees may validly be considered in applying the first sentence of Article 11 para. 2. Moreover, it authorises restrictions on trade union activities, but not the denial or prohibition of trade union membership. The second sentence refers to restrictions on the exercise of the right, but not to its destruction. As an exception clause, it should be narrowly construed, particularly as a broad interpretation would remove hundreds of thousands of public sector employees in the United Kingdom and millions throughout Europe from the protection of Article 11 and would be entirely inconsistent with the "fair balance" which is at the heart of the Convention as a whole.
If the second sentence of Article 11 para. 2 does exclude certain persons from the protection of Article 11 para. 1, it is submitted that the present case does not concern "members ... of the administration of the State". Article 11 para. 2 should be narrowly interpreted only to cover persons expressly mentioned - that is police and army personnel - and those who are included by necessary implication from the overwhelming demands of the context. All GCHQ employees are not so included. However, the trade union rights of all GCHQ employees were removed. The applicants refer in this context to Article 55 of the Treaty of Rome, Article 22 of the International Covenant on Civil and Political Rights, Article 5 of the Social Charter as well as to the Court's case-law in National Union of Belgian Police (judgment of 27 October 1975, Series A no. 19 para. 38 p. 17 et seq.), Swedish Engine Drivers' Union (judgment of 6 February 1976, Series A no. 20 para. 32 p. 14), and Schmidt and Dahlström (judgment of 6 February 1976, Series A no. 21 para. 36 p. 16).
In this light, the phrase "members ... of the administration of the State" should not be construed to cover all public employees or all employees of central government. Nor can it be appropriate to include within the second sentence of Article 11 para. 2 all persons working at GCHQ simply because their work is (directly or indirectly) associated with national security. Indeed, if the second sentence were to be so interpreted, there would be no need for the phrase "in the interests of national security" in the first sentence of Article 11 para. 2. The phrase "members ... of the administration of the State" means, in this context, persons who have a specific and direct connection with the exercise of official authority or who administer the basic functions of the State, that is high-ranking civil servants such as the Cabinet Secretary and Heads of Government Departments. It therefore does not cover all employees at GCHQ.
The second sentence of Article 11 para. 2 is not unique. Thus, the second paragraph of Article 1 of Protocol No. 1 and the third sentence of Article 10 para. 1 are subject to the principle of proportionality. The phrase "administration of the State" should therefore be construed to apply only to those employees covered by the overwhelming demands of the language and context.
The approach adopted by the Government in the present case would conflict with the general practice throughout Contracting States of allowing civil servants to join a trade union. The general practice fully recognises the right to belong to a union as distinct from the right to strike or to take other forms of industrial action which are, of course, restricted and sometimes even forbidden for certain sectors of the labour force in Convention States. Even in the United Kingdom, armed forces may belong to a trade union, though they may not be active in it.
The Government's approach also conflicts with the obligations undertaken by the United Kingdom under international Human Rights Covenants and Conventions. Article 11 para. 2 can only properly be understood against the background of the ILO Conventions of 1948 and 1949, against which background the 1950 Convention was drafted.
In this respect the ILO carefully distinguished two distinct rights. First, the ILO distinguished the right to belong to a trade union. Under Convention No. 87 of 1948, this right to belong is enjoyed by members of the administration of the State as well as by other employees. Secondly, there is the right to collective bargaining guaranteed by ILO Convention No. 98 of 1949. Public servants engaged in the administration of the State are not covered by Convention No. 98 dealing with collective bargaining though they are covered by the right to belong to a trade union in Convention No. 87. The consistent case-law of the ILO has always recognised this vital distinction.
Article 5 of the European Social Charter, Article 22 of the International Covenant on Civil and Political Rights and Article 8 of the International Covenant on Economic, Social and Cultural Rights, by all of which the United Kingdom is bound, also recognise the rights of members of the administration of the State to belong to a trade union. Those instruments expressly prevent measures which would derogate from the ILO Conventions.
IV. As to Article 13 of the Convention
It is important to understand that the applicants complain of the issue of certificates under Section 121(4) of the 1975 Employment Protection Act and Section 138(4) of the 1978 Employment Protection (Consolidation) Act removing trade union rights "for the purpose of safeguarding national security". They also complain of the exercise of powers under the 1982 Order in Council withdrawing the right to trade union membership for the same purpose. The domestic remedy open to the applicants, which they have exhausted, did not allow an assessment of whether, in taking those steps, the Government acted in response to a pressing social need or proportionately to any such need, or whether the powers exercised were prescribed by law. For that reason, the applicants did not argue before the domestic courts that the Government's action was not required by a pressing social need or that it was disproportionate to any such need or that it was not prescribed by law.
The decision of the House of Lords in the present case stated inter alia that judicial review does not exist to determine whether the decision complained of "was proper or fair or justifiable on its merits. These matters are not for the courts to determine" (per Lord Fraser). The scope of judicial review can be conveniently summarised under three main heads: illegality, irrationality and procedural impropriety (per Lord Diplock).
By "illegality" is meant that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. The House of Lords were not concerned with any such challenge in the present case.
By "irrationality" is meant, inter alia, that the decision-maker must not have regard to irrelevances, or ignore relevances, or act for an improper purpose. It was not suggested in the present case that the House of Lords should conclude that the decision complained of was irrational in that very narrow and extreme sense.
By "procedural impropriety" is meant the failure to observe the rules of natural justice or a failure to act with procedural fairness towards the person who will be affected by the decision. That was the complaint raised in the House of Lords: namely, that the complainants had a reasonable expectation of consultation prior to the decision to remove trade union rights, but that no such consultation had taken place.
In the present case, the House of Lords held that the complainants did have a legitimate expectation of consultation. However, in the present case "there was evidence upon which a reasonable Minister might have taken (the) view" that the Government "needed to act, to preserve national security" (per Lord Roskill). Once such evidence was produced, the court would not assess its weight, unless reliance on national security was irrational, which was not here suggested. So national security excused what would otherwise have been an unlawful procedural impropriety in failing to consult prior to the decision of which complaint was made.
It can therefore be seen that it was not open to the applicants to seek judicial review of the decisions complained of on the grounds that the powers exercised were not prescribed by law or the decisions made were not required by a pressing social need or were disproportionate to any such need.
Neither judicial review nor any other domestic legal procedure entitles the applicants to complain before a national authority with the power to grant an effective remedy if their rights guaranteed under Article 11, or the substance of those rights, have been breached. It is well known that the Convention is not incorporated into English law and that English courts have no power to determine whether the Convention has been breached. Judicial review applies criteria much less onerous for the State to satisfy (reference to Weeks v. United Kingdom, Comm. Report 7.12.84, para. 100; X v. United Kingdom, Eur. Court H.R., judgment of 5 November 1981, Series A no. 46 para. 56 et seq., p. 24 et seq.).
THE LAW
1. The applicants complain under Article 11 (Art. 11) of the Convention that the respondent Government have removed the right of individual employees at GCHQ to belong to a trade union.
a) In respect of the conditions set out in Article 27 para. 1 (b) (Art. 27-1-b) of the Convention, the applicants submit that the present application cannot be regarded as being substantially the same as that presented by the Trades Union Congress (TUC) to the International Labour Organisation (ILO). In particular, ILO Convention No. 87 contains no provisions comparable to Article 11 para. 2 (Art. 11-2). The issue whether the conditions specified in Article 11 para. 2 (Art. 11-2) are satisfied does not arise under the ILO Convention. Moreover, there was in the present case no investigation or settlement of the issues leading to a decision binding on the respondent Government.
The respondent Government do not request the Commission to reach any particular conclusion on the issue under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention. Nevertheless, it is pointed out that there is a clear similarity of scope and purpose between the relevant provisions of the two Conventions, and the complaints arise out of the same facts. The substance of the complaints is also identical. Moreover, the first applicant is a member of the TUC, and the TUC's application was made with the full concurrence of the first applicant.
The Commission has examined whether the present application is substantially the same as the complaints raised before the ILO within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention which states:
"1. The Commission shall not deal with any petition submitted under Article 25 (Art. 25 ) which ...(b) is substantially the same as a matter which ... has already been submitted to another procedure of international investigation or settlement ... "
It is true that the rights mentioned in Article 2 of the ILO Convention No. 87 of 1947 resemble to an extent the rights guaranteed in Article 11 para. 1 (Art. 11-1) of the Convention. However, the Commission finds that the present applicants, namely the Council of Civil Service Unions and six individual applicants, are not identical with the complainant before the ILO organs concerned. Rather the complaints before the ILO were brought by the Trades Union Congress, through its General Secretary, on its own behalf. Indeed, the six individual applicants before the Commission would not have been able to bring such complaints since the Committee on Freedom of Association was set up to examine complaints from organisations of workers and employees, as opposed to individual complainants.
Accordingly, the present application cannot be regarded as being substantially the same as the complaints brought before the ILO within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention. The Commission is therefore called upon to deal with the complaints raised by the applicants.
b) The applicants complain that individual employees at GCHQ no longer have the right to belong to a trade union. They rely on Article 11 (Art. 11) of the Convention which states:
"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 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."
The Commissions finds - in agreement with the parties - that there has been an interference by a public authority with the exercise of the applicants' right, under Article 11 para. 1 (Art. 11-1), to form and to join trade unions, namely in that on 25 January 1984, upon instructions of the Prime Minister as Minister for the Civil Service, the Secretary of State for Foreign and Commonwealth Affairs issued two certificates with the result that GCHQ staff were henceforth no longer permitted to be members of any existing trade union.
The Commission's next task is to examine whether such interference was justified under Article 11 para. 2 (Art. 11-2) of the Convention. First it must consider whether the interference falls to be considered under the first or the second sentence of Article 11 para. 2 (Art. 11-2).
The applicants have submitted that the restrictions at issue were not justified either by the conditions stated in the first or in the second sentence of Article 11 para. 2 (Art. 11-2). They have pointed out that the second sentence did not exclude persons from protection of their basic rights under Article 11 para. 1 (Art. 11-1) even when the conditions specified in the first sentence of paragraph 2 (Art. 11-2) were not satisfied. In any event, they consider that the present case does not concern "members ... of the administration of the State", since this concept must be given a narrow interpretation.
The Government have filed submissions justifying the interference both under the first and the second sentence of Article 11 para. 2 (Art. 11-2). However, in the Government's submissions the justification provided for in the second sentence is entirely independent of that contained in the first sentence. Otherwise the second sentence would be superfluous.
The Commission observes that the first sentence of Article 11 para. 2 (Art. 11-2) provides criteria for justifying an interference with the rights under Article 11 para. 1 (Art. 11-1). The second sentence specifically envisages restrictions on the exercise of these rights by various categories of persons employed by the State. The Commission finds that the restrictions at issue fall to be examined primarily under the second sentence, if the staff serving at GCHQ can be considered as "members ... of the administration of the State". The Commission must therefore turn its attention to the meaning and scope of these terms.
In this respect, the Commission notes that the applicants have placed much reliance on various other international instruments as a background to their interpretation in particular in the second sentence of Article 11 para. 2 (Art. 11-2) of the terms "members ... of the administration of the State".
It is true that the Commission has occasionally had recourse to other international instruments under international law (see Swedish Engine Drivers Union, Comm. Report 27.5.74, paras. 65 ff). In the present case, it notes that for instance Article 22 para. 1 of the International Covenant on Civil and Political Rights of 1966 ensures the right to form and join trade unions. The second sentence of Article 22 para. 2 is similar to the second sentence of Article 11 para. 2 (Art. 11-2) of the Convention, while only mentioning "the armed forces and ... the police" but not the administration of the State. Again, Article 8 para. 1 (a) of the International Covenant on Economic, Social and Cultural Rights of 1966 also guarantees the right to form and join trade unions. Nevertheless, Article 8 para. 2 which resembles the second sentence in Article 11 para. 2 (Art. 11-2) of the Convention now expressly includes the "members ... of the administration of the State".
In the Commission's opinion these differences sufficiently demonstrate that there can be no settled view under international law as to the position of members of the "administration of the State" in respect of trade union rights, and that these instruments cannot therefore be of assistance to the Commission in the present case.
In interpreting the term "members ... of the administration of the State" the applicants point out that the second sentence covers police and army personnel and those who have a specific connection with the exercise of official authority or who administer the basic functions of the State, e.g. high-ranking civil servants. It should not be construed to cover all persons working at GCHQ simply because their work is directly or indirectly associated with national security. Otherwise there would be no need for the phrase "in the interests of national security" in the first sentence of Article 11 para. 2 (Art. 11-2).
In the Government's submissions, the words "members ... of the administration of the State" are not limited to high-ranking civil servants. This would be inconsistent with the practice in a number of States of imposing restrictions on persons in the public service by reference not only to their level of responsibility but also to the nature of the services they perform. The function of GCHQ can be defeated just as effectively by the radio officer or the teleprinter operator. GCHQ can only operate as an integral whole. The phrase thus also covers employees whose duties are necessary for the proper performance of vital Government functions.
The Commission has examined whether the staff serving at GCHQ fall under the terms "members ... of the administration of the State". To a certain extent, the meaning and scope of these terms is uncertain and the Commission will not attempt to define them in detail. Nevertheless, the Commission notes that the terms are mentioned, in the same sentence in Article 11 para. 2 (Art. 11-2), together with "members of the armed forces (and) of the police". In the present case, the Commission is confronted with a special institution, namely GCHQ, whose purpose resembles to a large extent that of the armed forces and the police insofar as GCHQ staff directly or indirectly, by ensuring the security of the respondent Government's military and official communications, fulfil vital functions in protecting national security.
The Commission is therefore satisfied that the staff serving at GCHQ can be considered as "members ... of the administration of the State" within the meaning of the second sentence of Article 11 para. 2 (Art. 11-2) of the Convention. It must therefore examine whether the further conditions of the second sentence of Article 11 para. 2 (Art. 11-2) have been met, in particular whether the restrictions at issue were "lawful" within the meaning of that provision.
The applicants have pointed out that this must mean lawful under the Convention, having regard to the aim of the latter to prevent the interference with fundamental rights other than by means which are prescribed by law and which are necessary in a democratic society. They submit that the term "prescribed by law" in the first sentence of Article 11 para. 2 (Art. 11-2) is not met in that Section 121(4) of the 1975 Act and Section 138(4) of the 1978 Act grant to the State discretionary powers without any adequate indication how these powers should be exercised. Moreover, the powers conferred by Article 4 of the Order in Council of 1982 do not adequately indicate the conditions on which contractual terms and conditions may be regulated. Further, no provisions are made for judicial control of the State assertion that national security is at stake.
The Government submit that the measures imposed on GCHQ staff were lawful restrictions within the meaning of the second sentence of Article 11 para. 2 (Art. 11-2). Under the first sentence of Article 11 para. 2 (Art. 11-2) the Government contend that Article 4 of the 1982 Civil Service Order in Council expressly confers powers upon the Minister for the Civil Service. The power of the Secretary of State to issue certificates is expressly conferred by Section 121(4) of the 1975 Act and Section 138(4) of the 1978 Act. These provisions are all sufficiently clear and precise in their terms to give those affected an adequate indication as to the conditions in which certificates may be issued, namely where the exception of civil servants from the protection of the Acts is required for purposes of national security.
The Commission recalls that it has so far not expressed an opinion in its case-law on the meaning of the term "lawful" in this particular context. In the Commission's view, however, "lawful" within the meaning of the second sentence of Article 11 para. 2 (Art. 11-2) means in the first place that the measures at issue must at least have been in accordance with national law.
In the present case the Commission observes that, according to Article 4 of the 1982 Civil Service Order in Council, the Minister for the Civil Service may regulate the conditions of service of civil servants. It is true that this order is rather broad in that it does not specifically refer to the regulation of trade union membership. However, these powers of the Minister must be seen in connection with the two Employment Protection Acts of 1975 and 1978 which restrict the exercise of the powers under the Civil Service Order in Council and on the basis of which provisions the Foreign Secretary, on 25 February 1984, signed and issued certificates. In particular, Section 138(4) of the 1978 Act and the corresponding Section 121(4) of the 1975 Act expressly refer to the issuing of such certificates for the purpose of safeguarding national security. The Commission finds that the measures at issue met this condition in that the staff at GCHQ were concerned with vital functions of national security.
Against this legislative background the Commission considers that the relevant legal provisions provided an adequate and sufficient indication to those employed at GCHQ as to the possibility of steps being taken to regulate trade union membership. In this respect the Commission notes, in addition, that the measures at issue were subject to judicial control by the domestic courts. In the Commission's opinion, the measures were, therefore, taken in accordance with national law.
The applicants have also submitted that the "lawful restrictions" of a right cannot imply its destruction. Furthermore, the second sentence is also subject to the principle of proportionality and, as an exception clause, should be narrowly construed since a broad interpretation would remove millions of public sector employees throughout Europe from the protection of Article 11 (Art. 11). In the context of the terms "necessary in a democratic society" in the first sentence of Article 11 para. 2 (Art. 11-2) , the applicants contend that the measures were disproportionate in that there was no "pressing social need" for the Government to deny trade union rights after 37 years, and to deny them only 2 1/2 years after the industrial action occurred. The Government failed to consult the trade unions before issuing the certificates, and failed to act on the recommendations of the House of Commons Employment Committee, even though the trade unions were willing to offer guarantees.
The Government submit that the term "lawful" in the second sentence of Article 11 para. 2 (Art. 11-2) cannot be interpreted as requiring that restrictions should also be "necessary in a democratic society". In the context of the first sentence of Article 11 para. 2 (Art. 11-2) the Government submit that undoubtedly the industrial action at GCHQ was intended to harm the Government who alone can appreciate the effects of the action. The lapse of time until the certificates were issued can be explained by the fact that the Government undertook a full reappraisal of the measures required to prevent a recurrence of the threat to national security. The Government also found that the guarantees offered by the trade unions were not adequate. A fair balance has now been secured between the interests of national security and the rights under Article 11 (Art. 11) by creating a departmental staff association at GCHQ.
The Commission has examined first the applicants' submission that the term "restrictions" in the second sentence of Article 11 para. 2 (Art. 11-2) cannot imply complete suppression of the exercise of the right in Article 11 (Art. 11). However, the Commission recalls that the same term is also employed in the first sentence of Article 11 para. 2 (Art. 11-2). This provision has been interpreted by the Commission as also covering a complete prohibition of the exercise of the rights in Article 11 (Art. 11) (see e.g. Application No. 8191/78, Rassemblement jurassien and Unité jurassienne v. Switzerland, 10.10.79, D.R. 17 p. 93). Accordingly, the term "restrictions" in the second sentence of Article 11 para. 2 (Art. 11-2) is sufficiently broad also to cover the measures at issue.
Second, the Commission notes the applicants' submissions that the term "lawful" in the second sentence of Article 11 para. 2 (Art. 11-2) includes the principle of proportionality. In this respect, the Commission finds that, even if the term "lawful" ("légitime") should require something more than a basis in national law, in particular a prohibition of arbitrariness, there can be no doubt that this condition was in any event also observed in the present case.
The Commission recalls its case-law according to which States must be given a wide discretion when ensuring the protection of their national security (see Leander v. Sweden, Comm. Report 17.5.1985, para. 68).
In the present case, the Commission has considered the Government's position when issuing the certificates. In particular, the Government had to ensure that the functioning of GCHQ would no longer be vulnerable to disruption by industrial action. After industrial action had occurred in 1981 and once the Government had acknowledged the functions of GCHQ in May 1983, the time and means were lacking for the Government to conduct substantial negotiations with the trade unions. The guarantees offered by the latter were in the Government's assessment not adequate. The Government were aware that trade union officials outside GCHQ could organise industrial action within GCHQ in which GCHQ staff would participate as loyal trade union members. Thus, it could not be excluded that industrial action could again occur at GCHQ at any moment. In this respect the Commission notes in particular that the House of Lords, in its judgment of 2 November 1984, unanimously accepted that the basis of the Government's actions related to the interests of national security.
The Commission considers that in this light and against the whole background of industrial action and the vital functions of GCHQ the action taken, although drastic, was in no way arbitrary. The measures would therefore also be "lawful" within a wider meaning of that term in the second sentence of Article 11 para. 2 (Art. 11-2).
The Commission is thus satisfied that the measures at issue, while interfering with the applicants' rights under Article 11 para. 1 (Art. 11-1), were justified under the second sentence of Article 11 para. 2 (Art. 11-2) as being "lawful restrictions (imposed) on the exercise of these rights by members ... of the administration of the State". Therefore, there is no further need to examine the measures in relation to the conditions of the first sentence of Article 11 para. 2 (Art. 11-2). It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants complain that there was no effective remedy under domestic law for the alleged breach of Article 11 para. 2 (Art. 11-2), by which a municipal court can judge the validity of a particular administrative action. No remedy was available to them which was sufficient and effective. No remedy allowed an assessment of whether the Government acted in response, or proportionately, to a pressing social need, or whether the powers exercised were prescribed by law. The Convention is not incorporated into English law and English courts have no power to determine whether the Convention has been breached. Judicial review applies criteria much less onerous for the State to satisfy. The applicants rely on Article 13 (Art. 13) of the Convention which states:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
The Government submit that Article 13 (Art. 13) does not require the incorporation into domestic law or imply that domestic courts enjoy the same scope of examination as provided for in the Convention. Both the issue of the certificates and the giving of instructions under the Order in Council are subject to judicial review by the English courts. The decision of the House of Lords clearly demonstrates the effectiveness of the remedy of judicial review. In fact, in the present case, English courts had regard to substantially the same considerations as confront the Commission. Moreover, the material and evidence before the Commission are also identical to that placed before the domestic courts.
The Commission recalls the case-law of the Convention organs under Article 13 (Art. 13) of the Convention according to which an individual, who has an arguable claim to be the victim of a violation of the rights set forth in the Convention, should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. However, neither Article 13 (Art. 13) nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention (see Eur. Court H.R., judgment of Silver and others of 25 March 1983, Series A no. 61, para. 113 p. 42).
In the present case the Commission, which considers that the applicants had an arguable claim, observes that they were able to bring the case before the High Court, the Court of Appeal and the House of Lords. In dealing with the case, these courts examined whether the measures at issue fell under the 1982 Civil Service Order and the 1975 and 1978 Acts. The courts also examined the rights of trade union members as well as the manner in which the measures were taken, for instance, whether the Government should first have consulted the trade unions. Moreover, the courts reviewed the justification of the measures, in particular on grounds of national security.
The Commission has also taken account of the fact that, since the Convention is not part of the domestic law of the United Kingdom, the High Court, the Court of Appeal and the House of Lords, as the "national authorities" referred to in Article 13 (Art. 13) of the Convention, did not decide upon arguments which were made with express reference to the Convention. However, the Commission concludes that in the present case the relevant rights were substantially relied upon by the applicants in the domestic proceedings and that the national authorities were capable of affording the complainants an "effective remedy" within the meaning of Article 13 (Art. 13) (see No. 9261/81, Dec. 3.3.82, D.R. 28 p. 177).
In particular, the Commission considers that the Court of Appeal and the House of Lords were able to consider the essence of the applicants' present complaints under Article 11 (Art. 11) of the Convention. The courts would have been able to quash the action taken by the Prime Minister under the 1982 Civil Service Order, had they found for the applicants in the proceedings in question. In fact, this course was followed by the High Court in its decision of 16 July 1984 which was subsequently set aside, on appeal, by the Court of Appeal.
The Commission concludes that effective remedies were in fact available to the applicants and that the proceedings concerned satisfied the requirements of Article 13 (Art. 13) of the Convention. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission (H.C. KRÜGER)
President of the Commission (C.A. NØRGAARD)