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ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS & FIREMEN (ASLEF) v. THE UNITED KINGDOM - 11002/05 [2007] ECHR 184 (27 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/184.html
Cite as:
[2007] IRLR 361,
45 EHRR 34,
22 BHRC 140,
[2007] ECHR 184,
(2007) 45 EHRR 34
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FOURTH SECTION
CASE OF ASSOCIATED SOCIETY OF
LOCOMOTIVE ENGINEERS & FIREMEN (ASLEF) v. THE UNITED KINGDOM
(Application no. 11002/05)
JUDGMENT
STRASBOURG
27
February 2007
This judgment will become final
in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the
case of Associated Society of Locomotive Engineers & Firemen
(ASLEF) v. the United Kingdom,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas
Bratza,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 6
February 2007,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
The case originated in an
application (no. 11002/05) against the United Kingdom of Great
Britain and Northern Ireland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by the Associated Society of
Locomotive Engineers & Firemen (ASLEF) (“the applicant”),
on 24 March 2005.
The applicant was
represented by Thompsons, solicitors practising in London. The United
Kingdom Government (“the Government”) were represented by
their Agent, Ms K. McCleery of the Foreign and Commonwealth Office,
London.
3. The applicant trade
union alleged that it had been prevented from expelling one of its
members due to his membership of the British National Party, a
political party which advocated views inimical to its own. It invoked
Article 11 of the Convention.
On 7 December 2005, the
Court decided to give notice of the application to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is a trade
union, representing mainly train drivers on the United Kingdom’s
railways. Founded in 1880, it has some 18,000 members and most train
drivers are members of ASLEF. It is an independent trade union. The
various companies on the United Kingdom rail network do not operate a
“closed shop” and railway workers, including drivers, are
free to join ASLEF or other unions or not to join a union at all.
Its Rules provide that
its objects include, as well as regulating relations between workers
and employers and protecting the welfare of members and the industry,
that it “assist in the furtherance of the labour movement
generally towards a Socialist society (Rule 3.1(vii) and to “promote
and develop and enact positive policies in regard to equality of
treatment in our industries and ASLEF regardless of sex, sexual
orientation, marital status, religion, creed, colour, race or ethnic
origin” (Rule 3.1(viii)).
In 1978 the Annual
Assembly of Delegates(“AAD”) of ASLEF, its governing
body, resolved, pursuant to rule 14(a) of ASLEF rules, that "this
AAD being concerned with the rise of Fascist activists and groups
instruct the Executive Committee to campaign vigorously to expose the
obnoxious policies of political parties such as the National Front."
In February 2002, a Mr
Lee (a member of the far-right, lawful, British National Party
(‘BNP’), previously known as the National Front) applied
for membership in ASLEF and was accepted. In April 2002 Mr Lee stood
as a candidate in the local elections in Bexley for the BNP.
On 17 April 2002 an ASLEF
trade union officer sent a report to the General Secretary concerning
Mr Lee, attaching information that Mr Lee was an activist in the BNP,
had handed out anti-Islamic leaflets dressed as a priest and that in
1998 he had stood as a candidate for the BNP in Newham. The report
included an article written by Mr Lee for Spearhead (the BNP
magazine) and a fax from Bexley Council for Racial Equality stating
that Mr Lee had seriously harassed Anti-Nazi League pamphleteers,
including taking pictures of them, taking their car numbers, making
throat-cutting gestures and following one woman in his car and
visibly noting her home address, which matters had been reported to
the police.
On 19 April 2002, an
Executive Committee meeting of ASLEF voted unanimously to expel Mr
Lee, who was so informed by a letter of 24 April 2002, which
stated that his membership of the BNP was incompatible with
membership with ASLEF, that he was likely to bring the union into
disrepute and that he was against the objects of the union.
Mr Lee appealed against
the expulsion and was informed that a hearing would take place on 13
March 2003. On 20 February 2003, he stated that he would not attend.
On 13 March 2003, the Appeals Committee of ASLEF met and rejected his
appeal.
On 18 May 2002, AAD
resolved "that membership of the BNP or similar Fascist
organisation is incompatible with being a member of ASLEF as
determined under Rule 5-Objects. Therefore any members of BNP who are
members of, or apply for membership, of ASLEF shall be removed from
membership or refused membership." The rules were changed
accordingly to read:
Rule 4.1(d):
“No person shall be admitted into membership of
ASLEF if by choice they are members of, supporters of, or
sympathisers with, organisations which are diametrically opposed to
the objects of the union, such as a fascist organisation.”
In
the meantime, Mr Lee had brought proceedings in the Employment
Tribunals (‘ET’) in respect of his expulsion, on the
basis of section 174 Trade Union and Labour Relations (Consolidation)
Act 1992 (‘section 174’), which prohibits trade unions
from excluding a person or expelling a member wholly or to any extent
on the ground that the individual is or was a member of a political
party. The ET found in favour of Mr Lee on 21 May 2003. The applicant
appealed to the Employment Appeal Tribunal (‘EAT’), which
on 10 March 2004 found that the first ET had fallen into serious
errors of law, quashed the decision and remitted it to a second ET.
The
EAT considered that it could construe section 174 without the need to
resort to Article 11. It noted the parties’ submissions,
including the applicant’s reliance on the decision in Cheall
v. the United Kingdom (no. 10550/83, Comm. Dec. 13.5.85,
D.R. 42, p. 178) and continued:
“As we have indicated [counsel for the applicant]
accepts that we are not in a position to grant a declaration of
incompatibility, on the one hand... But it is also clear to us that
the very existence of competing claims under Article 11 (albeit that
it would seem to us, on the authorities, that, absent a case of
prejudice to livelihood, in this case [the applicant’s] right
of negative association for the Union and its members would seem
likely to override the asserted right of association of [Mr Lee])
renders it more appropriate for us to seek to resolve the
construction of the statute without reference to those competing
rights. [Counsel for the applicant], while reserving his position,
does not dissent from that course, and [counsel for Mr Lee] said that
he understood, and indeed accepted that it was thereby being assumed
in [his favour] that there is at least arguable an Article 11 right,
such as he asserts.”
The
EAT’s conclusion on the meaning of section 174 was that a union
could rely as a legitimate ground for expulsion on the conduct of the
expelled member so long as that conduct was not the fact of being a
member of a political party. It found that a union could not rely on
conduct which was a “necessary act for the purpose of being
or continuing to be a member” (at paragraph 29 of its
judgment). It specifically rejected the submission advanced by the
applicant that included in the concept of membership (and thus
amounting to conduct on which the union was not permitted to rely)
was conduct as a member, or in the capacity as a member, of a
political party (paragraph 28.5 of the EAT judgment).
A
second ET again upheld Mr Lee’s complaint by way of decision
promulgated on 6 October 2004. It rejected the applicant’s
defence that Mr Lee’s expulsion was entirely attributable
to his conduct (apart from the fact of membership of the BNP) for the
purpose of section 174, holding that the expulsion was “primarily
because of his membership of the BNP” (paragraph 25 of its
judgment).
The
applicant did not appeal to the EAT against the second decision of
the ET.
In
consequence of the second decision of the ET, the applicant has been
obliged to re-admit Mr Lee to the membership of the Union. It is in
breach of its own Rules in so doing. Had the applicant not
re-admitted Mr Lee, it would have been liable to pay him
compensation in such sum as the ET considered just and equitable
(subject to a statutory minimum of, currently, just over 8,600 euros
(EUR), with no upper limit). Even though it has re-admitted Mr Lee,
the applicant remains exposed to an application from Mr Lee for
compensation in such sum as the ET considers just and equitable but
subject to an upper limit of around EUR 94,200. It does not appear
that Mr Lee has made any such application.
II. RELEVANT DOMESTIC LAW
Section 174 of the Trade Union
and Labour Relations (Consolidation) Act 1992 reads in relevant part:
(1) An individual shall not be excluded or expelled from
a trade union unless the exclusion or expulsion is permitted by this
section.
(2) The exclusion or expulsion of an individual from a
trade union is permitted by this section if (and only if) –
...
(d) the exclusion or expulsion is entirely attributable
to his conduct.
...
(3) For purposes of subsection 2(d) ‘conduct,’
in relation to an individual, does not include –
(a) his being or ceasing to be, or having been or ceased
to be -
(...)
(iii) a member of a political party, or ...”
Subsequent to the
decision of the second ET in Mr Lee’s case, section 174 was
amended (with effect from 31 December 2004) to read as follows (again
in material part only):
“(1) An individual shall not be excluded or
expelled from a trade union unless the exclusion or expulsion is
permitted by this section.
(2) The exclusion or expulsion of an individual from a
trade union is permitted by this section if (and only if) –
(...)
(d) the exclusion or expulsion is entirely attributable
to conduct of his (other than excluded conduct) and the conduct to
which it is wholly or mainly attributable is not protected conduct.
...
(3) For purposes of subsection (2)(d) “excluded
conduct,” in relation to an individual, means –
(a) conduct which consists in his being or ceasing to,
or having been or ceased to be, a member of another trade union
(b) conduct which consists in his being or ceasing to
be, or having been or ceased to be, employed by a particular employer
or at a particular place, or
(c) conduct to which section 65 (conduct for which an
employer may not be disciplined by a union) applies or would apply if
the references in that section to the trade union which is relevant
for the purposes of that section were references to any trade union.
(4A) For the purposes of subsection (2)(d) “protected
conduct” is conduct which consists in the individual’s
being or ceasing to be, or having been or ceased to be, a member of a
political party.
(4B) conduct which consists of activities undertaken by
an individual as a member of a political party is not conduct falling
within subsection (4A). ..”
Section 177(1)(b)
provides that “‘conduct’ includes statements,
acts and omissions.”
III. RELEVANT INTERNATIONAL MATERIALS
A. Council of Europe
Article 5 of European
Social Charter 1961 provides for the following “right to
organise”:
“With a view to ensuring or promoting the freedom
of workers and employers to form local, national or international
organisations for the protection of their economic and social
interests and to join those organisations, the Contracting Parties
undertake that national law shall not be such as to impair, nor shall
it be so applied as to impair, this freedom. The extent to which the
guarantees provided for in this Article shall apply to the police
shall be determined by national laws or regulations. The principle
governing the application to the members of the armed forces of these
guarantees and the extent to which they shall apply to persons in
this category shall equally be determined by national laws or
regulations.”
In that context, the
European Committee of Social Rights of the Council of Europe
(formerly the “Committee of Independent Experts”, which
is the supervisory body of the European Social Charter 1961 has given
consideration on numerous occasions to sections 174-177 of the 1992
Act. Concern with the interference by section 174 in the right of
trade unions to fix their own rules and choose their own members was
expressed by the Committee in Conclusions XIII-3, p. 109; Conclusions
XV-1 p. 629; and in November 2002, Conclusions XVI-1, p. 684 where it
held:
“Section 174 of the 1992 Act limits the grounds on
which a person may be refused admission to or expelled from a trade
union to such an extent as to constitute an excessive restriction on
the rights of a trade union to determine its conditions for
membership and goes beyond what is required to secure the individual
right to join a trade union....The Committee concludes that, in light
of the provisions of the Trade Union and Labour Relations
(Consolidation Act) 1992 referred to above (sections 15, 65, 174 and
226A) the situation in the United Kingdom is not in conformity with
Article 5 of the Charter”
In Conclusions XVII-1
(2004) it again concluded that the United Kingdom was not in
conformity with Article 5 of the Charter as section 174 constituted
an excessive restriction on trade unions’ right to determine
their membership conditions.
B. The International Labour Organisation (“ILO”)
The (ILO) Freedom of
Association and Protection of the Right to Organise Convention, 1948
(no. 87) provides, inter alia:
“Part I. Freedom of Association
...
Article 2
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 LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION AND
ADMISSIBILITY
A. The parties’ observations
The Government submitted
that the application should be rejected for non-exhaustion of
domestic remedies, as although the applicant had raised a claim under
Article 11 of the Convention in the EAT it did not press that
submission at the oral hearing and accepted that the EAT should
proceed to interpret section 174 without reference to Article 11. It
was then not able to pursue an appeal against the EAT for ignoring
that claim. In particular, the applicant did not require the EAT to
apply section 3 of the Human Rights Act 1998, by seeking to construe
the legislation so as to make it compatible with its Convention
right. It was only concerned to ensure that it could rely on Mr Lee’s
various activities as the basis for expelling him; it did not propose
any construction of section 174 which would have accorded with its
case before this Court, namely that it had an Article 11 right to
determine its own membership. They submitted that Article 35 § 1
was not satisfied where an applicant relied on some other ground for
impugning a measure, ignoring a possible Convention argument (Azinas
v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 III).
They asserted that, if the applicant had pressed its submission that
Article 11 entitled it to choose its own membership save where
exclusion or expulsion caused loss of livelihood and that submission
had been accepted, there was ample scope for a creative
interpretation of section 174 which would have given effect to that
conclusion, including the possibility of reading in a clause “save
as necessary to avoid breach of Convention rights”.
Insofar as the applicant
argued that it was unable to appeal from the EAT as it had been
successful, the Government further submitted that the Court of Appeal
could still admit such appeals in “exceptional circumstances”.
Further, the applicant could have pursued a declaration of
incompatibility under section 4 of the HRA before the Court of
Appeal, which could be an effective remedy as found in Upton v.
the United Kingdom (no. 28900/04, decision of 11 April 2006) as,
if successful, this would have obliged the Government to change the
law to allow the expulsion on ground of BNP membership.
The applicant submitted
that its counsel made full submissions on Article 11 to the EAT and
that it was entirely wrong to assert that it was accepted by him that
the EAT should ignore Article 11. Counsel did rely on section 3
submitting that section 174 should be construed so far as possible in
accordance with Article 11, so that the phrase ‘member of a
political party’ be construed as narrowly as possible so as to
be limited to mere membership and thus to permit expulsion for
activities other than the mere fact of membership: it was not
possible in that context to construe the term “member of a
political party” so as to permit a union to expel a person just
because he or she was a member of a political party. It only desisted
in pursuing its submissions further orally after the EAT made clear
that it was not inclined to decide the point and gave indications
that ASLEF was in any event unlikely to be successful on the point.
Furthermore, as the applicant had been successful in its appeal to
the EAT no appeal could have been brought against that decision to
the Court of Appeal. In any event any appeal would have been hopeless
as it was not impossible to ignore the words of section 174
altogether. It noted that the Government accepted that once the
second employment tribunal had made its decision there was no further
domestic remedy that could have been pursued with any prospect of
success.
B. The Court’s assessment
The Court reiterates
that the rule of exhaustion of domestic remedies referred to in
Article 35 § 1 of the Convention obliges applicants to use first
the remedies that are normally available and sufficient in the
domestic legal system to enable them to obtain redress for the
breaches alleged. The existence of the remedies must be sufficiently
certain, in practice as well as in theory, failing which they will
lack the requisite accessibility and effectiveness. Article 35 §
1 also requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements laid down in domestic law, but not that
recourse should be had to remedies which are inadequate or
ineffective (see Aksoy v. Turkey, judgment of 18 December
1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v.
Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
In the present case, the
Court observes that the applicant trade union raised complaints in
the proceedings under Article 11 claiming that it had the right to
choose its own membership. The argument was, the Government conceded,
made before the EAT; however the Court cannot accept the Government’s
assertion that the applicant somehow waived or dropped this part of
his case. It appears rather from the terms of the EAT judgment that,
in face of that Tribunal’s view that Article 11 was irrelevant
and that they should seek to resolve the construction of the statute
without reference to the competing rights under that provision, the
applicant’s counsel reserved his position. As, therefore, the
issues were squarely raised before the EAT and indeed considered, the
Court does not consider that on this basis the applicant has failed
to exhaust domestic remedies. Nor is it persuaded that the applicant
could, given the EAT ruling was in his favour on other grounds, have
appealed to the Court of Appeal and applied in addition for a
declaration of incompatibility, as it was in effect the winning party
and appeal lies against orders not reasons or findings. While the
Government asserted that the Court of Appeal could admit an appeal by
a winning party in exceptional circumstances, there is no indication
that this case fell within such a category. The Government have not
argued that the applicant should have appealed when it lost before
the second Employment Tribunal and the Court sees no basis on which
to differ, given the Employment Appeal Tribunal’s earlier
stance and the findings of fact reached by the first instance body.
The
Court therefore rejects the Government’s preliminary objection
on non-exhaustion. It further notes that the application is not
inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
Article 11 of the
Convention provides:
“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.”
A. The parties’ observations
1. The Government
The Government accepted
that section 174 represented an interference with rights under
Article 11 § 1 in interfering with the autonomy which a trade
union would otherwise possess in the matter of determining its
membership. The restrictions imposed in respect of membership of a
political party were, however, justified as necessary and
proportionate. They relied on the importance of the countervailing
rights of trade union members and prospective members to freedom of
expression and freedom of association which would be engaged by
expulsion from a trade union. Those rights were at the very
foundation of democratic society, not least as the case concerned
sanctions in respect of membership of a political party. They also
claimed that a wide discretion remained for trade unions to expel or
exclude on grounds of political activities. Section 174 only imposed
a limited restriction on expelling those with views inimical to the
trade union’s objectives; it was only the applicant’s own
error in approach that led to a problem as there was ample conduct by
Mr Lee, going beyond mere membership of the BNP, which the applicant
could have relied on in order to found an entirely lawful decision to
expel him.
The Government also
emphasised the special status of trade unions which set them apart
from other voluntary associations, pointing out that they play a
potentially very important role in the working lives of individuals
and exercising a direct influence over matters such as pay, holidays
and other terms and conditions of employment, such that the
Government were justified in imposing some limits on the applicant’s
power to confer or withhold the considerable benefits of membership.
Finally, they relied on the wide margin of appreciation which applied
when striking a balance between the autonomy of trade unions and the
Articles 10 and 11 rights of individual members and prospective
members.
2. The applicant
The applicant submitted
that there was no justification for the interference with its right
to determine its membership. There was no interference with Mr Lee’s
freedom of expression as expulsion did not interfere with his right
to express his political views. In any event any sanction was minimal
and did not take priority over its right, and its members’
rights, to exercise their own freedom of association and expression.
Mr Lee never claimed that he suffered any detriment from exclusion.
It referred to Article 17 to the effect that Article 10 would not
protect some-one engaged in destroying other rights and freedoms.
Since it was committed to opposing race discrimination, it would
interfere with its rights, and its members, to be forced to admit
into membership a person who was a member of such a right wing
organisation. It did not accept that section 174 imposed a limited
restriction, pointing out that it simply did not wish to associate
with those whom they regarded as fascists or members of extreme right
wing parties, whether active or not. It claimed that it had the right
to dissociate itself from those whose political membership they
abhorred. While Mr Lee’s status as an activist might furnish
greater reason to expel him, this did not touch on the fundamental
issue. It would be acceptable if section 174 were framed so as to
limit exclusion to membership of a party the objectives of which were
contrary to the objectives of the trade union.
The applicant did not
consider its role as a trade union was significant as alleged, since
the collective bargaining that it was involved in applied to all, not
just its members. There was nothing to suggest that Mr Lee lost
any benefit in his working life from exclusion from ASLEF. Finally
the applicant denied that there was a wide margin of appreciation as
this was a situation where domestic law ran counter to freedom of
association and considered that the Court was not precluded from
examining the proportionality of the measure and ensuring a fair
balance was struck.
B. The Court’s assessment
1. General principles
The essential object of
Article 11 is to protect the individual against arbitrary
interference by public authorities with the exercise of the rights
protected. The right to form and join trade unions is a special
aspect of freedom of association which also protects, first and
foremost, against State action. The State may not interfere with the
forming and joining of trade unions except on the basis of the
conditions set forth in Article 11 § 2 (see Young, James and
Webster v. United Kingdom,. Commission’s report of
14 December 1979, § 162, Eur. Court H.R., Series B no. 39,
p .45
The right to form trade
unions involves, for example, the right of trade unions to draw up
their own rules and to administer their own affairs. Such trade union
rights are explicitly recognised in Articles 3 and 5 of ILO
Convention No. 87, the provisions of which have been taken into
account by the Convention organs in previous cases (see e.g.
Cheall v. the United Kingdom, no. 10550/83, Comm. Dec. 13.5.85,
D.R. 42, p. 178; Wilson & the National Union of Journalists
and Others v. the United Kingdom, nos. 30668/96, 30671/96
and 30678/96, § 34, ECHR 2002 V). Prima facie
trade unions enjoy the freedom to set up their own rules concerning
conditions of membership, including administrative formalities and
payment of fees, as well as other more substantive criteria, such as
the profession or trade exercised by the would-be member.
As an employee or worker
should be free to join, or not join a trade union without being
sanctioned or subject to disincentives (e.g. Young, James
and Webster v. the United Kingdom, judgment of 13 August 1981,
Series A no. 44, mutatis mutandis, Wilson & the
National Union of Journalists and Others, cited above), so should
the trade union be equally free to choose its members. Article 11
cannot be interpreted as imposing an obligation on associations or
organisations to admit whosoever wishes to join. Where associations
are formed by people, who, espousing particular values or ideals,
intend to pursue common goals, it would run counter to the very
effectiveness of the freedom at stake if they had no control over
their membership. By way of example, it is uncontroversial that
religious bodies and political parties can generally regulate their
membership to include only those who share their beliefs and ideals.
Similarly, the right to join a union “for the protection of his
interests” cannot be interpreted as conferring a general right
to join the union of one’s choice irrespective of the rules of
the union: in the exercise of their rights under Article 11 § 1
unions must remain free to decide, in accordance with union rules,
questions concerning admission to and expulsion from the union
(Cheall, cited above; see also Article 5 of the European
Social Charter and the Conclusions of the European Committee of
Social Rights, Relevant International Materials, paragraphs 22-24
above ).
This basic premise holds
good where the association or trade union is a private and
independent body, and is not, for example, through receipt of public
funds or through the fulfilment of public duties imposed upon it,
acting in a wider context, such as assisting the State in securing
the enjoyment of rights and freedoms, where other considerations may
well come into play (e.g. Kjeldsen, Busk Madsen and
Pedersen v. Denmark, judgment of 7 December 1976, Series A
no. 23, § 50, Costello-Roberts v. the United Kingdom,
judgment of 25 March 1993, Series A no. 247 C, § 26-27,
where in providing education throughout the country, the State is
responsible for both public and privately run schools §§26-27;
or, mutatis mutandis, organisational frameworks for trades or
professions where membership may well be compulsory or highly
regulated e.g. public law institutions which are not covered
by Article 11 § 1 at all: Sigurður A. Sigurjónsson
v. Iceland, judgment of 30 June 1993, Series A no. 264, §
31).
Accordingly, where the
State does intervene in internal trade union matters, such
intervention must comply with the requirements of Article 11 §
2, namely be “prescribed by law” and “necessary in
a democratic society” for one or more of the permitted aims. In
this context, the following should be noted.
Firstly, “necessary”
in this context does not have the flexibility of such expressions as
“useful” or “desirable” (Young, James and
Webster, cited above, § 63).
Secondly, pluralism,
tolerance and broadmindedness are hallmarks of a “democratic
society” (Handyside v. the United Kingdom, judgment of
7 December 1976, Series A no. 24, p. 23, § 49). Although
individual interests must on occasion be subordinated to those of a
group, democracy does not simply mean that the views of a majority
must always prevail: a balance must be achieved which ensures the
fair and proper treatment of minorities and avoids any abuse of a
dominant position. For the individual right to join a union to be
effective, the State must nonetheless protect the individual against
any abuse of a dominant position by trade unions (see Young, James
and Webster judgment, cited above, § 63). Such abuse might
occur, for example, where exclusion or expulsion from a trade union
was not in accordance with union rules or where the rules were wholly
unreasonable or arbitrary or where the consequences of exclusion or
expulsion resulted in exceptional hardship (see Cheall, cited
above, Johanssen v. Norway, no. 13537/88, Comm. Dec. 7.5.90).
Thirdly, any restriction
imposed on a Convention right must be proportionate to the legitimate
aim pursued (amongst many authorities, Handyside, cited above,
p. 23, § 49).
Fourthly, where there is
a conflict between differing Convention rights, the State must find a
fair and proper balance (see no. 11366/85, Comm. Dec 16.10.86, DR 50
p. 173; Gaskin v. the United Kingdom, judgment of 7 July 1989,
Series A no. 160, §§ 42-44).
46. Finally,
in striking a fair balance between the competing interests, the State
enjoys a certain margin of appreciation in determining the steps to
be taken to ensure compliance with the Convention (amongst many
authorities, Hatton and Others v. the United Kingdom [GC],
no. 36022/97, § 98, ECHR 2003 VIII). However,
since this is not an area of general policy, on which opinions within
a democratic society may reasonably differ widely and in which the
role of the domestic policy-maker should be given special weight (see
e.g. James and Others v. the United Kingdom, judgment
of 21 February 1986, Series A no. 98, p. 32, § 46, where
the Court found it natural that the margin of appreciation “available
to the legislature in implementing social and economic policies
should be a wide one”), the margin of appreciation will play
only a limited role.
2. Application in the present case
The question that arises
in the present case concerns the extent to which the State may
intervene to protect the trade union member, Mr Lee, against measures
taken against him by his union, the applicant.
It is accepted by the
parties in this case that section 174 had the effect in this case of
prohibiting the applicant from expelling Mr Lee as it barred unions
from such action where it was motivated, at least in part, by
membership of a political party. This constituted an interference
with the applicant’s freedom of association under the first
paragraph of Article 11 which requires to be justified in the terms
set out above.
In the context of the
case, lawfulness is not an issue. Nor is it disputed that the measure
had the aim of protecting the rights of individuals, such as Mr Lee,
to exercise their various political rights and freedoms without undue
hindrance. The crucial question is whether the State has struck the
right balance between Mr Lee’s rights and those of the
applicant trade union.
Taking due consideration of
the Government’s argument as to the importance of safeguarding
fundamental individual rights, the Court is not persuaded however
that the measure of expulsion impinged in any significant way on Mr
Lee’s exercise of freedom of expression or his lawful political
activities. Nor is it apparent that Mr Lee suffered any particular
detriment, save loss of membership itself in the union. As there was
no closed shop agreement for example, there was no apparent prejudice
suffered by the applicant in terms of his livelihood or in his
conditions of employment. The Court has taken account of the fact
that membership of a trade union is often regarded, in particular due
to the trade union movement’s historical background, as a
fundamental safeguard for workers against employers’ abuse and
it has some sympathy with the notion that any worker should be able
to join a trade union (subject to the exceptions set out in Article
11 § 2 in fine). However, as pointed by the applicant,
ASLEF represents all workers in the collective bargaining context and
there is nothing to suggest in the present case that Mr Lee is at any
individual risk of, or is unprotected from, any arbitrary or unlawful
action by his employer. Of more weight in the balance is the
applicant’s right to choose its members. Historically, trade
unions in the United Kingdom, and elsewhere in Europe, were, and
though perhaps to a lesser extent today are, commonly affiliated to
political parties or movements, particularly those on the left. They
are not bodies solely devoted to politically-neutral aspects of the
well-being of their members, but are often ideological, with strongly
held views on social and political issues. There was no hint in the
domestic proceedings that the applicant erred in its conclusion that
Mr Lee’s political values and ideals clashed, fundamentally,
with its own. There is no indication that the applicant had any
public duty or role conferred on it, or has taken the advantage of
state funding, such that it may reasonably be required to take on
members to fulfil any other wider purposes.
As regards the
Government’s assertion that domestic law would have permitted
the expulsion of Mr Lee if the applicant had restricted its grounds
to conduct not related to his membership of the BNP, the Court would
note that the Employment Tribunal found that the applicant’s
objections to Mr Lee were primarily based on his membership of the
BNP. It does not find it reasonable to expect the applicant to have
used the pretext of relying purely on Mr Lee’s conduct which
was largely carried out by him as a member of, and reflected his
adherence to the aims of, the BNP.
Accordingly, in the
absence of any identifiable hardship suffered by Mr Lee or any
abusive and unreasonable conduct by the applicant, the Court
concludes that the balance has not been properly struck and that the
case falls outside any acceptable margin of appreciation.
There has, accordingly,
been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Costs and expenses
The applicant sought
only costs and expenses incurred both within the domestic legal
system to obtain redress for the violation and before this Court. It
claimed for the two Employment Tribunal hearings GBP 11,958.31 and
for the Employment Appeal Tribunal proceedings GBP 12,799, both sums
inclusive of value-added tax (VAT). It claimed for the Strasbourg
proceedings, GBP 17,343, also inclusive of VAT, which included GBP
393 for solicitors, GBP 10,868.75 for senior counsel, GBP 4, 993.75
and GBP 1,057, respectively, for the two junior counsel. Sums were
also claimed for estimated future proceedings.
The Government argued
that, as in the employment proceedings costs did not follow the event
and that even if successful the applicant would have had to bear the
expense of vindicating its rights, such costs should not be
recoverable in Strasbourg. They also asserted that as the applicant
had ample grounds on which it could have expelled Mr Lee, the
proceedings had been entirely avoidable. Further as the proceedings
were less formal than ordinary court proceedings and it was
commonplace for parties to proceed without legal representation (as
Mr Lee did), it was the applicant’s choice to be represented
and its instruction of a Queen’s Counsel was disproportionate
and the Government should not have to meet those costs, particularly
where it failed to press its Article 11 claims and those aspects of
the case were not involved in the second tribunal proceedings.
The Government
submitted, as regarded Strasbourg costs, that the sums claimed by the
applicant who had instructed three counsel were excessive. They
considered 50% of the amount claimed would be reasonable. They also
disputed the amount of possible future costs.
The Court recalls that
only legal costs and expenses found to have been actually and
necessarily incurred and which are reasonable as to quantum are
recoverable under Article 41 of the Convention (see, among other
authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March
1999, § 79, and Smith and Grady v. the United Kingdom
(just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR
2000-IX). This may include domestic legal costs actually and
necessarily incurred to prevent or redress the breach of the
Convention (see, for example, I.J.L., G.M.R. and A.K.P. v. the
United Kingdom (Article 41), nos. 29522/95, 30056/96 and
30574/96, § 18, 25 September 2001).
Concerning, first, the
domestic proceedings, the Court would note that it is not at all
uncommon for courts and tribunals within Contracting States not to
adopt the approach of costs following events. According to its
long-established practice, where an applicant has, in such
proceedings, incurred costs as a direct result of seeking redress
for, or to prevent a, breach of his or her rights, these may be
regarded as a financial loss flowing from that breach and thus
recoverable in Strasbourg proceedings, regardless of whether these
could have been reimbursed at the domestic level. The Court has
already rejected above the Government’s argument that the
applicant was in some way responsible for provoking the proceedings
through its own conduct and it does not find it unreasonable, in a
matter of vital concern, that it instructed senior counsel. Nor are
the sums claimed here unreasonable. The Court has also found that the
applicant did not fail, as alleged, to raise his Convention claims
before the tribunals and even if, pursuant to the Employment Appeal
Tribunal decision the Article 11 point was not considered by the
second Tribunal, this does not detract from the fact that it was that
Tribunal’s decision which finally decided that the applicant
had acted contrary to section 174 in expelling Mr Lee and thus
rendered the applicant a victim of a breach of Article 11 as found
above. The Court awards the sum claimed, namely 38,900 euros (EUR)
(equivalent approx. GBP 24,757.31), inclusive of VAT.
Turning to the
Strasbourg costs, noting the relative lack of complexity of the
proceedings before it and the awards made in comparable cases, and
agreeing with the Government that the instruction of three counsel
led to an unnecessary duplication of work, the Court awards
EUR 15,000 (approx. GBP 10,000), inclusive of VAT.
B. Default interest
The Court considers it
appropriate that the default interest should be based on the marginal
lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares
the application admissible;
Holds
that there has been a violation of Article 11 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 53,900 (fifty three thousand nine hundred euros) in
respect of costs and expenses, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(b) that from the expiry of
the above-mentioned three months until settlement simple interest
shall be payable on the above amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points;
Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English,
and notified in writing on 27 February 2007, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
