CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 janvier 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 11603/85 by the Council of Civil Service Unions, Christopher BRAUNHOLTZ, Jack HART, Ann DOWNEY, Jeremy WINDUST, Dennis MITCHELL and David McCAFFREY against the United Kingdom             The European Commission of Human Rights sitting in private on 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.     COMPLAINTS   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.     PROCEEDINGS BEFORE THE COMMISSION           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.