CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 septembre 1995

.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. 22954/93                       by Mobin AHMED et al.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 12 September 1995, the following members being present:              MM.    S. TRECHSEL, President                  E. BUSUTTIL                  G. JÖRUNDSSON                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  C. BÎRSAN                  P. LORENZEN              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 21 September 1993 by Mobin AHMED, Dennis PERRIN, Ray BENTLEY, David John BROUGH and UNISON against the United Kingdom and registered on 19 November 1993 under file No. 22954/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the Commission's decision of 30 August 1994 to communicate the       application; -      the observations submitted by the respondent Government on       16 January 1995 and the observations in reply submitted by the       applicants on 4 April 1995;   -      the parties' oral submissions at the hearing on       12 September 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are four individuals and UNISON, a trade union. The applicants are represented before the Commission by Mr. B. Piper, a solicitor and Director of Legal Services of UNISON.   The facts of the case may be summarised as follows.   The particular circumstances of the case   (i)    The applicants         The first applicant, Mr. Ahmed, was born in 1941.   He is a solicitor with the London Borough of Hackney.   His job description states that he is required to advise committee members, although he does not do so on a regular basis.   He was adopted as Labour candidate for municipal elections in the London Borough of Enfield in 1990, but was unable to stand because of the Local Government Officers (Political Restrictions) Regulations 1990 ("the Regulations").   It appears that he applied to the adjudicator for exemption from the Regulations, but that the exemption was not given because his employer failed to certify that he did not give advice on a regular basis (see Relevant Domestic Law, post).         The second applicant, Mr. Perrin, was born in 1932.   Until he retired, he was Principal Area Planner with the Devon County Council. He also attended committee meetings to give technical rather than policy advice.   He applied to the adjudicator for an exemption from the Regulations, and was refused.         The third applicant, Mr. Bentley, was born in 1948.   He is a Planning Manager with Plymouth City Council.   He resigned from his position as Chairman of Torridge and West Devon Constituency Labour Party because of the Regulations.   He was also restricted in canvassing for his wife who stood as the only Labour Councillor for the West Devon Borough Council, and in giving radio interviews in his position as Chairman of the Plymouth Health Emergency, a body concerned with National Health policies.   He also applied for an exemption from the Regulations and was refused.         The fourth applicant, Mr. Brough, was born in 1947.   He is head of Committee Services with the London Borough of Hillingdon.   He was Parliamentary Chairman in Harrow East in the last two General Elections, and is regularly invited to speak at public meetings on issues such as housing and the health service.   These activities are restricted under the Regulations.   His employing authority's chief executive has said that the service Mr. Brough gives to the hung council is completely impartial and totally professional and that it would be tragic if Mr. Brough were forced to choose between his job and pursuing political interests outside Hillingdon.         The fifth applicant, UNISON, is a trade union.   Each of the individual applicants is a member.   It is the successor to the National and Local Government Officers Association (NALGO) and represents workers in the public sector.   (ii)   The Regulations and the applicants' challenge to them         Section 1 (5) of the Housing and Local Government Act 1989 (the 1989 Act) entered into force on 29 November 1989.   It empowers the Secretary of State for the Environment to make regulations to restrict the political activities of certain local government officers.   The persons to whom the relevant parts of the 1989 Act refer are called persons holding politically restricted posts ("PPRPs").   The individual applicants are all PPRPs.         Regulations were made under Section 1(5) of the 1989 Act on 4 April 1990.   They were laid before Parliament the following day and came into force on 1 May 1990.         The applicants applied for and were granted leave to apply for judicial review of the Regulations.   The application was dismissed on 20 December 1991.   The judge, Mr. Justice Hutchison, recalled that the House of Lords had recently given its decision in the case of R. v. Secretary of State for the Home Department, ex parte Brind and others. He considered that he was bound by the House of Lords' findings as to the position of (in particular) Article 10 of the Convention in domestic law.    In connection with the test of "Wednesbury" unreasonableness, the judge referred to an affidavit submitted by Mr. Simcock, a senior civil servant at the Department of the Environment, in which Mr. Simcock explained how the Widdicombe Committee had been set up in 1985 to enquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers.   Mr. Simcock also described the consultation process between the publication of the Widdicombe Report and the making of the Regulations, in which Nalgo (the predecessor of UNISON) was involved, and the way in which the Regulations were in some respects less restrictive than the Committee's proposals.         The judge continued:         "... I preface my summary by pointing out that some of [the       applicants' complaints] reflect the applicants' root and branch       opposition to the whole concept of restricting the political       activities of local government employees.   It is said that:              (a)    There was no pressing social need for the Regulations-            local government employees have in the past provided            impartial advice and there is public confidence in their            ability to do so.              (b)    The definition of PPRPs is unduly wide - a much more            restricted category would have served the government's            purpose.              c)     The restrictions are expressed in broad, subjective            and uncertain terms - a vice particularly objectionable            where, as here, they seek to restrict fundamental human            rights.   Thus, in the Schedule references to apparent            intention (paragraphs 6 and 7) and to publication in            circumstances likely to create an impression (paragraphs 9            and 10) are objectionable, as is paragraph 4 of the            Regulations themselves.              d)     The consequence of the vice mentioned in the previous            paragraph is that employees are likely to be treated            inconsistently by different employers, by reason of there            being room for undue latitude in interpreting the            restrictions.              e)     The Regulations go too far in prohibiting conduct            undertaken with apparent intention, etc., or likely to            create the impression of support, etc.   They should, at            most, have proscribed actual political activities.              f)     The width of the language used means that many non-            party political activities, including trade unions and            charitable activities, are prohibited.              g)     The terms are imposed on existing employees, who            entered into their contracts of employment on a different            basis.              h)     The restrictions may have an adverse effect on            recruitment and lead to resignations by skilled staff.         Some of these points will have to be considered individually when       I come to deal with further arguments advanced by the applicants       under quite different heads, but in the context of Wednesbury       unreasonableness I propose only to say that they do not in my       judgment come near to establishing a case of perversity.   I have       already briefly referred to the genesis of the Act and the       Regulations in the Widdicombe Report, and to the consultative       processes that followed it.   Paragraph 51 of the Report contained       the recommendation that:              '..... terms and conditions of [PPRPs] [should include] a            prohibition on political activity, including ... (iii)            speaking or writing in public in a personal capacity in a            way that might be regarded as engaging in party political            debate;'         The Government's Command Paper in July 1988 (in which, as already       mentioned, the view was expressed that the categories of PPRPs       should be more restricted than the Report proposed) spelt out the       essential aim that:              'it was important that the post-holder should be seen to be            politically impartial but that otherwise, local government            employees should not be subject to restrictions on their            political activity.'         Of the specific arguments mentioned in (a) to (h) above, those       in (a), (b), (e), (g) and (h) are, it seems to me, essentially       arguments against the whole concept of restricting such       activities, and in the circumstances cannot found an attack on       Wednesbury grounds.   The arguments summarised in (c) and (d) are       to the effect that the Regulations are uncertain and incapable       of consistent and fair application.   As a Wednesbury argument,       this contention could not avail the applicants - at least unless       the regulations were void for uncertainty (this would be a       distinct ground for challenge) which plainly they are not.       Finally, the argument mentioned in (f) is in my view       misconceived: the Regulations do not prohibit the kind of       activities there mentioned.   I shall have more to say on this       subject when I deal with the applicants' specific arguments on       vires and legitimate expectation, to the first of which I now       turn."         Finally, the judge found that the Regulations did not go beyond the policy and purpose of the 1989 Act, and rejected an argument that the applicants had a "legitimate expectation" that the Government would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters.         The applicants' appeal to the Court of Appeal was dismissed on 26 November 1992.   Lord Justice Neill, who expressly approved the judgment of Mr. Justice Hutchison, found that the provisions of Article 10 of the Convention did not assist the applicants, confirmed that it was not open to the courts below the House of Lords to depart from the traditional Wednesbury grounds in reviewing the decision of a minister who has exercised a discretion vested in him by Parliament, and found that the Regulations were not "Wednesbury unreasonable" or ultra vires.   He also agreed with the first instance judge as to legitimate expectation.   The other judges, Lords Justice Russell and Rose, agreed.   Leave to appeal to the House of Lords was refused.         The House of Lords refused leave to appeal to it on 24 March 1993.   Relevant Domestic Law         Section 1 (5) of the 1989 Act provides:         "The terms of appointment or conditions of employment of every       person holding a politically restricted post under a local       authority (including persons appointed to such posts before the       coming into force of this section) shall be deemed to incorporate       such requirements for restricting his political activities as may       be prescribed for the purposes of this subsection by regulations       made by the Secretary of State."         So far as relevant to the present case, Section 2 of the 1989 Act defines PPRPS as the holders of certain specified posts (Section 2 (1) (a) - (f)) and persons included on lists held by the local authority (Section 2 (1) (g)).   The authority is required to keep lists of persons with a salary above a certain level (currently £25,020 or pro rata for part time posts - Section 2 (2) (a) and (b)), and those who fall within Section 2 (3).         Section 2 (3) provides:         "The duties of a post under a local authority fall within this       subsection if they consist in one or both of the following, that       is to say -         (a)   giving advice on a regular basis to the authority            themselves, to any committee or sub-committee of the            authority ...         (b)   speaking on behalf of the authority on a regular basis to            journalists or broadcasters."         Section 2 (10) of the 1989 Act excludes teachers from the scope of the definition of a PRPP.         Section 3 of the 1989 Act provides for the appointment of a person to consider applications for exemption from political restriction.   If the person appointed (who is called the adjudicator) finds that the duties of a listed post do not fall within Section 2 (3), he is required to direct that the post is not to be regarded as a politically restricted post.   The authority must then remove the post from the list maintained under Section 2 (2).         The Regulations provide, so far as relevant, as follows:         "3.   (1)   The terms of appointment and conditions of employment       of every person holding a politically restricted post under a       local authority (including persons appointed to such posts before       the coming into force of these Regulations) shall be deemed to       incorporate -         (a)   in all cases, the terms and conditions set out in Part I of            the Schedule hereto;              (b)    in the case of persons appointed other than                  pursuant to Section 9 of the Act [such as the                  individual applicants]..., the further terms and                  conditions set out in Part II of that Schedule                  ..."             (2) The terms and conditions referred to in paragraph (1)(a)       to (c) apply to the appointee at all times while he holds his       appointment.         4.    In determining whether a person is in breach of a term or       condition set out in Part II of the Schedule hereto, regard shall       be had, in particular, to the following matters -         (a)   whether the appointee referred to a political party or to            persons identified with a political party, or whether            anything said by him or the relevant work promotes or            opposes a point of view identifiable as the view of one            political party and not of another ...                                  Schedule              Terms of appointment and conditions of employment                                   Part I                                   General         1.   The appointee shall not announce or cause, authorise or       permit anyone else to announce that he is, or intends to be, a       candidate for election as a member of -              (a) the House of Commons;              (b) the European Parliament; or              (c) a local authority within the meaning of Section 21(1)                or (2) of the Act.       ...         4.   The appointee shall not be an officer of a political party       or of any branch of such a party or a member of any committee or       sub-committee of such a party or branch if his duties as such an       officer or member would be likely to require him -              (a) to participate in the general management of the party                or the branch; or              (b) to act on behalf of the party or branch in dealings                with persons other than members of the party or members               of another political party associated with the party.         5.   The appointee shall not canvass on behalf of a political       party or on behalf of a person who is, or proposes to be, a       candidate for election or any of the bodies mentioned in       paragraph 1.                                 Part II         6. The appointee shall not speak to the public at large or to a       section of the public with the apparent intention of affecting       public support for a political party.         7.    (1)   The appointee shall not -              (a) publish any written or artistic work of which he is the                author (or one of the authors) or any written work or                collection of artistic works in relation to which he                has acted in an editorial capacity; or              (b) cause, authorise or permit any other person to publish                such a work or collection,         if the work appears to be intended to affect public support for       a political party.             (2) Sub-paragraph (1) only applies to publication to the       public at large or to a section of the public; and nothing in       that sub-paragraph shall preclude the display of a poster or       other document on property occupied by the appointee as his       dwelling or on a vehicle or article used by him.         8.   Nothing in paragraph 6 or 7 shall be construed as precluding       the appointee from engaging in the activities there mentioned to       such extent as is necessary for the proper performance of his       official duties."   COMPLAINTS         The applicants allege violation of Articles 10 and 11 of the Convention, and of Article 3 of Protocol No. 1.         They consider that paragraphs 4 and 5 of the Schedule to the Regulations interfere with the individual PPRP's freedom to participate in the democratic process, and that paragraphs 6 and 7 of the Schedule prohibit freedom of expression and are particularly oppressive to trade union members.   They also consider that paragraphs 6 and 7 deny the right to participate fully in elections.         The applicants consider that the Regulations do not correspond to a pressing social need, in particular because local authority employees have, for a very considerable time, provided impartial advice and earned the faith of the public in so doing.   They also consider that the definition of PPRPs is unduly wide, and invades the rights of many thousands of employees, that the Regulations are unduly extensive, and that they are subjective, uncertain and retroactive.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 September 1993 and registered on 19 November 1993.         On 30 August 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 16 January 1995, after two extensions of the time-limit fixed for that purpose.   The applicants replied on 4 April 1995, also after an extension of the time-limit.         On 26 June 1995 the Commission decided to invite the parties make oral submissions at a hearing.   Immediately before the hearing, which took place on 12 September 1995, the applicants withdrew complaints they had initially made under Articles 8 and 9 of the Convention.   The parties were represented at the hearing as follows:   The Government:   Mrs. Susan J. DICKSON, Agent of the Government Mr. James EADIE, Counsel Mr. Paul ROWSELL, Adviser, Department of the Environment Ms. Elizabeth JENKINSON, Adviser, Department of the Environment Mr. Nicholas DEXTER, Adviser, Department of the Environment   The applicants:   Mr. James GOUDIE Q.C., Counsel Mr. Adrian LYNCH, Counsel Mr. Bruce PIPER, Solicitor   Mr. David WHITFIELD, an officer of UNISON, was also present.   THE LAW   1.     The first to fourth applicants allege violations of Articles 10 and 11 (Art. 10, 11) of the Convention and of Article 3 of Protocol No. 1 (P1-3) to the Convention by the operation of the Local Government (Political Restrictions) Regulations 1990.   These provisions run as follows:         Article 10 (Art. 10)         "1.   Everyone has the right to freedom of expression.   This       right shall include freedom to hold opinions and to receive and       impart information and ideas without interference by public       authority ...         2.    The exercise of these freedoms, since it carries with it       duties and responsibilities, may be subject to such formalities,       conditions, restrictions or penalties as are prescribed by law       and are necessary in a democratic society ... for the protection       of the ... rights of others ..."         Article 11 (Art. 11)         "1.   Everyone has the right to freedom of peaceful assembly and       to freedom of association with others, including the right to       form and to join trade unions for the protection of his       interests.         2.    No restrictions shall be placed on the exercise of these       rights other than such as are prescribed by law and are necessary       in a democratic society ... 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 administration of the State."         Article 3 of Protocol No. 1 (P1-3) to the Convention         "The High Contracting Parties undertake to hold free elections       at reasonable intervals by secret ballot, under conditions which       will ensure the free expression of the opinion of the people in       the choice of the legislature."         The Government do not contest the individual applicants' capacity to claim to be victims of alleged violations of the Convention, but otherwise contest the applicants' claims.   In connection with Article 10 (Art. 10) of the Convention, they consider that the imposition of conditions of employment on public servants does not amount to an interference with the right to freedom of expression, but that even if it does, the interference is justified on the grounds set out in Article 10 para. 2 (art. 10-2).   In particular, they point to the impossibility, accepted by the European Court of Human Rights, of specifying all types of proscribed behaviour in a particular context, and they regard any interference as necessary for the proper functioning of the democratically elected organs of local government. They refer to the long tradition of political neutrality of local government officers, and to the need perceived by the Widdicombe Committee in 1985 to strengthen that tradition by statutory regulation. They also note that the preamble to the Convention refers to the importance of "effective political democracy", and they see officers' political impartiality, at least in the United Kingdom, as vital to the functioning of that democracy.   They also note that the number of officers affected by the Regulations is limited (indeed, considerably less than recommended by the Widdicombe Report), that an independent adjudicator can examine applications for exemption from the Regulations, and that the adjudicator is required to direct such exemption if satisfied that the duties of the post of the applicant for exemption do not fall within Section 2 (3) of the Act.         The Government consider that the complaints under Article 11 (art. 11) of the Convention are inadmissible for largely the same reasons as the Article 10 (art. 10) complaints, save that they add that the final sentence of Article 11 para. 2 (art. 11-2) in any event applies to the individual applicants.         As to Article 3 of Protocol No. 1 (P1-3), the Government see no right for a person who has voluntarily assumed responsibilities vis-a- vis the State to stand for an election.   They plead that the rights in Article are not absolute and consider that the Regulations do not deprive the rights of their effectiveness.         The individual applicants do not accept that public servants fall outside the scope of Article 10 (art. 10) of the Convention, and emphasise the impact that the Regulations have had on their political activities: each of them has felt obliged to curtail those activities because what was formerly permitted has now been made a breach of contract by the Regulations.   They do not agree that the Regulations are formulated with sufficient precision to satisfy the requirement that they be "prescribed by law", and consider that the Government have not shown that the restrictions are necessary to protect the "rights of others".   In particular, they recall that the Convention exists to safeguard individual rights, and they do not accept that a Government perception that the rights of the generality are being protected can justify extensive interference with their own rights.   The applicants see neither a "pressing social need" for the Regulations nor proportionality in the way they operate, especially as there were no complaints about the quality and professionalism of their advice to their respective employers before the Regulations were introduced.         The individual applicants do not consider themselves "members ... of the administration of the State" within the meaning of Article 11 para. 2 (art. 11-2) of the Convention, and point to the impact that the Regulations have not just on party political activity, but also on union activity.   They note that there is often such a close link between union and party politics that, for example, a PPRP will scarcely be able to make a speech at a union conference without adopting a line which follows or contradicts the policies of one of the established political parties.         In connection with Article 3 of Protocol No. 1 (P1-3), the applicants consider that the Regulations single out a large group of persons in an arbitrary way for unfair treatment at elections.         In the light of the parties' observations, the Commission finds that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This part of the case cannot, therefore, be regarded as being manifestly ill-founded and no other ground for declaring it inadmissible has been established.   2.     UNISON, the fifth applicant, claims to be a victim of substantially the same violations of the Convention as the individual applicants.   It considers that as the Regulations affect local authority employees both as employees and as members of their trade union, the union may itself claim to be directly affected by the Regulations.   It points out that a significant result of the Regulations is to inhibit individuals from engaging in and expressing views on trade union matters.         The Commission recalls that the word "victim" in Article 25 (art. 25) of the Convention refers to the person or persons directly affected by the act or omission in issue (Eur. Court H.R., Corigliano judgment of 10 December 1982, Series A no. 57, p. 12, para. 31).   The Commission has found, for example, that the loss of employment by journalists on closure by the State of the press agency which employed them did not suffice to permit the journalists to claim to be victims of alleged violations of the Convention in respect of the closure (No. 10628/83, Dec. 14.10.85, D.R. 44, p. 175, at p. 190).         The Commission notes the express inclusion, in Article 11 para. 1 (art. 11-1) of the Convention, of the right "to form and to join trade unions", and recalls that a trade union may claim to be a victim of alleged violations of its own rights (cf. Eur. Court H.R., National Union of Belgian Police Case, judgment of 27 October 1975, Series A no. 20, p. 18, para. 39), and that a trade union may be able to claim to be the victim of a violation of Article 11 (art. 11) of the Convention where the right to join a trade union is completely removed (cf. No. 11603/85, Council of Civil Service Unions et al. v. the United Kingdom, Dec. 20.1.87, D.R. 50, p. 228, where the question of the union's standing was not expressly addressed).         The Regulations at issue in the present case do not affect any rights which UNISON may have under Article 11 (art. 11) of the Convention, and UNISON's freedom of expression is not limited in any way by the Regulations.         Moreover, the Regulations were not addressed to trade unions but to local authority employees, and they do not refer to limitations on individuals' union activity.   To the extent that an individual may be affected by the Regulations in the exercise of his Convention rights, for example in his freedom of expression by speaking in public in a union context, he is the person affected and not the union.         Accordingly the Commission finds that UNISON is not directly affected by the provisions of the Regulations within the meaning of the Convention organs.   It may not therefore claim to be a victim of a violation of the Convention within the meaning of the Article 25 (art. 25).         This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 27 para. 2 (art. 27-2) of the Convention.         For these reasons, the Commission,         unanimously,       DECLARES INADMISSIBLE the application to the extent that it is       brought by UNISON, the fifth applicant, and         by a majority,       DECLARES ADMISSIBLE, without prejudging the merits, the remainder       of the application.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                              (S. TRECHSEL)