Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22954/93

Mobin Ahmed, Dennis Perrin, Ray Bentley and David John Brough

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 29 May 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-38) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-30). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 31-38). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 39-107). . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 39). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 40). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 10 of the Convention

(paras. 41-87). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 87). . . . . . . . . . . . . . . . . . . . 20

D. As regards Article 11 of the Convention

(paras. 88-93). . . . . . . . . . . . . . . . . . 21

CONCLUSION

(para. 93). . . . . . . . . . . . . . . . . . . . 21

E. As regards Article 3 of Protocol No. 1 to the Convention

(paras. 94-104) . . . . . . . . . . . . . . . . . 22

CONCLUSION

(para. 104) . . . . . . . . . . . . . . . . . . . 23

F. Recapitulation

(paras. 105-107). . . . . . . . . . . . . . . . . 23

TABLE OF CONTENTS

Page

CONCURRING OPINION OF M. L. LOUCAIDES . . . . . . . . . . . 24

DISSENTING OPINION OF MRS. G.H. THUNE . . . . . . . . . . . 26

DISSENTING OPINION OF MRS. J. LIDDY

JOINED BY MM. B. MARXER AND G. RESS . . . . . . . . . . . . 27

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 28

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicants are four British citizens, born in 1941, 1948,

1947 and 1932 respectively. They live in London, Yelverton,

Edgware and Exeter respectively. They were represented before the

Commission by Mr. B. Piper, a solicitor and Director of Legal Services

of UNISON, a trade union.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agent, Ms. S.J. Dickson

of the Foreign and Commonwealth Office, London.

4. The case concerns restrictions on the political activities of

local government officers. The applicants invoke Articles 10 and 11

of the Convention and Article 3 of Protocol No. 1 to the Convention.

B. The proceedings

5. The application was introduced by the present applicants, and by

Unison, a trade union, on 21 September 1993. It was registered on

19 November 1993.

6. On 30 August 1994 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 16 January 1995

after two extensions of the time-limit fixed for this purpose. The

applicants replied on 4 April 1995 after an extension of the

time-limit.

8. On 26 June 1995 the Commission decided to hold a hearing of the

parties. The hearing was held on 12 September 1995. The Government

were represented by Ms. S.J. Dickson, Agent of the Government,

Mr. J. Eadie, counsel, and Mr. P. Rowsell, Ms. E. Jenkinson, and

Mr. N. Dexter, advisers, Department of the Environment. The applicants

were represented by Mr. J. Goudie Q.C., counsel, Mr. A. Lynch, counsel,

and Mr. B. Piper, solicitor. Mr. D. Whitfield, officer of Unison, was

also present.

9. On 12 September 1995 the Commission declared the application

inadmissible to the extent that it was brought by Unison. It declared

the remainder of the application admissible.

10. The parties were invited to respond to a question from the

Commission and to submit such further information or observations on

the merits as they wished. The applicants submitted further

information on 19 October 1995 and Government submitted further

observations on 7 November 1995.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

C. BÎRSAN

P. LORENZEN

13. The text of this Report was adopted on 29 May 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. Section 1 (5) of the Housing and Local Government Act 1989 ("the

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 Act refer are called persons

holding politically restricted posts ("PPRPs"). The applicants are all

PPRPs.

18. The Local Government Officers (Political Restrictions)

Regulations 1990 ("the Regulations") were made under Section 1 (5) of

the Act on 4 April 1990. They were laid before Parliament the

following day and came into force on 1 May 1990.

19. The first applicant, Mr. Ahmed, is a solicitor with the London

Borough of Hackney. 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 Regulations. On 7 March 1990 he applied for

removal of his job description from the list of politically restricted

posts. The council confirmed that Mr. Ahmed had not attended

committees during previous 12 months, but stated that he would be

involved in giving advice to committees in future, and would attend on

a more regular basis. The council therefore did not provide a

certificate that he did not give advice regularly. The adjudicator

replied to the council on 30 March 1990 that Mr. Ahmed's application

for exemption could not therefore be granted (see Relevant Domestic

Law, post).

20. The second applicant, Mr. Perrin, was Principal Area Planner with

the Devon County Council until he retired. On 19 February 1990, he

applied for exemption from political restrictions on the ground that

although he advised the council at meetings and spoke to the media, the

advice was "factual valuation information regarding the acquisition,

disposal and management of property". His application for exemption

was refused on 20 March 1990. The adjudicator wrote "I am satisfied

that the duties of your post do fall within Section 2 (3) of the Act

in that you do regularly attend committee meetings of the authority to

give advice. Your authority do state that this advice does not extend

to 'policy advice', but the Act itself makes no distinction between

types of advice. I am not prepared, therefore, to grant an exemption

under Section 3 (4) of the Act."

21. As a result of the Regulations, Mr. Perrin had to give up his

position as vice chair and property officer of Exeter Constituency

Labour Party, and had to refrain from supporting and assisting labour

candidates in Exeter City Council elections, including his wife, who

was a candidate in May 1990 and May 1991. He has also reduced his

involvement in trade union activities.

22. The third applicant, Mr. Bentley, 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, and 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.

23. The monitoring officer of the council classified Mr. Bentley's

post as one which was politically sensitive and appropriately subject

to political restrictions, under Section 2 (3) of the Act. The reasons

for the classification included that Mr. Bentley was head of the

council's corporate policy unit, that he was responsible directly to

the head of the council's paid service, that his post was responsible

for policy analysis and research, that he represented the council on

a transport steering group involving other authorities and

organisations, and that, in the 12 months to 31 August 1990, he

attended three meetings of the council's Policy and Resources (Finance

sub-) Committee and advised on four separate issues of public

transport. The monitoring officer considered that Mr. Bentley's post

also fell within Section 2 (7) (a) and (b) of the Act, and so was

politically restricted in any event.

24. Mr. Bentley applied for exemption from political restrictions.

On 19 November 1990 the adjudicator underlined that he regarded his

duties as limited to considering applications concerning restrictions

under Section 2 (2) of the Act. He stated that although the council

may have identified the post as being politically restricted, it was

not "politically restricted because of that fact, but because it is

explicitly covered by Section 2 (1) (c) of the Act. I therefore do not

consider it necessary or desirable to address the question of whether

this post meets the criteria for inclusion in the list of posts under

Section 2 (2) or for exemption from that list, unless or until it is

established that the post is not covered by Section 2 (1) (c)."

25. The fourth applicant, Mr. Brough, 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.

* * *

26. The applicants and Nalgo (the predecessor of Unison, one of the

original applicants in the present application) 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 was

involved, and the way in which the Regulations were in some respects

less restrictive than the Committee's proposals. Referring to senior

officers, the Committee had said:

"...It is part of their job to advise councillors, and to

adjudicate on matters of propriety, and in so doing they must

command the respect and trust of all political parties. There

might well be some senior officers who are politically active but

who are nevertheless totally able to detach themselves from such

activity in carrying out their duties as neutral officers.

Nevertheless we believe there will always be a very significant

risk that they are viewed with suspicion by councillors of other

parties, and that as a consequence the performance of their

duties towards the council as a whole will be impaired".

27. 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."

28. Finally, the judge found that the Regulations did not go beyond

the policy and purpose of the 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.

29. An 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 Nalgo and 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 Justices

Russell and Rose, agreed. Leave to appeal to the House of Lords was

refused.

30. The House of Lords refused leave to appeal to it on

24 March 1993.

B. Relevant domestic law

31. Section 1 (5) of the 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."

32. Section 2 of the Act defines PPRPS as (i) the holders of certain

specified posts (Section 2 (1) (a) - (f)) and (ii) persons included on

lists held by the local authority (Section 2 (1) (g)).

33. As to PPRPs who hold specific posts, Section 2 (1) (c) makes

"non-statutory chief officers" PPRPs. A "non-statutory chief officer"

is defined at Section 2 (7) as, inter alia, a person for whom the head

of the authority's paid service is responsible (Section 2 (7) (a)), or

a person who, largely or exclusively, reports directly to or is

directly accountable to the head of the authority's paid service

(Section 2 (7) (b)). A "deputy chief officer" is a person who, as

respects all or most of the duties of his post, is required to report

directly or is directly accountable to one or more of the statutory or

non-statutory chief officers (Section 2 (8)). By Section 2 (9), purely

secretarial or clerical staff are not non-statutory chief officers or

deputy chief officers.

34. As to the lists prepared pursuant to 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),

unless they are exempted under Section 3.

35. Section 3 of the 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 (that is, a post which is politically restricted by

virtue of Section 2 (1) (g), rather than by virtue of Section 2 (1) (a)

- (f)) 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).

36. 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."

37. Section 2 (10) of the Act excludes teachers from the scope of the

definition of a PPRP.

38. 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 ...

(b) where the appointee spoke or the work was published as part

of a campaign, the effect which the campaign appears to be

designed to achieve.

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."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

39. The Commission has declared admissible the applicants' complaints

that the Local Government (Political Restrictions) Regulations 1990

operate to their detriment in a way which denies their freedom of

expression and of assembly, and their right to participate fully in the

electoral process.

B. Points at issue

40. The points at issue in the present case are as follows:

- whether there has been a violation of Article 10 (Art. 10) of the

Convention;

- whether there has been a violation of Article 11 (Art. 11) of the

Convention, and

- whether there has been a violation of Article 3 of Protocol No. 1

(P1-3) to the Convention.

C. As regards Article 10 (Art. 10) of the Convention

41. Article 10 (Art. 10) of the Convention provides as follows:

"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, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

42. The applicants claim that the Regulations have had a clear impact

on their lives in that each applicant has had to curtail political

activities because what was formerly permitted has now been made a

breach of contract by the Regulations.

43. They consider that this interference with their freedom of

expression is not compatible with Article 10 (Art. 10). They deny that

the Regulations are formulated with sufficient precision to be

"prescribed by law", pointing in particular to para. 6 of the Schedule

to the Regulations, which proscribes speaking to the public "with the

apparent intention of affecting public support for a political party".

Para. 7 of the Schedule also refers to work which "appears to be

intended to affect public support for a political party". In further

connection with the allegation that the Regulations are not "prescribed

by law", the applicants point out that they are employees of local

authorities, and are bound by contracts with those local authorities,

but that the Regulations were imposed by central authorities, and will

inevitably be enforced inconsistently.

44. The applicants accept that they owe duties and responsibilities

to their employers, and that those duties and responsibilities affect

their freedom of expression. They do not, however, accept that the

Regulations can form part of those duties and responsibilities. They

note, first, that the Regulations were not in force when they took up

their employment, but also consider that their own duties and

responsibilities cannot extend to a denial of all political activity.

45. The applicants can see no necessity in a democratic society for

the Regulations. They find neither a legitimate aim nor a "pressing

social need" for the interference. As to the legitimate aim for the

interference, they accept that the "rights of others" may in certain

circumstances extend to including the rights of citizens to secure an

effective political democracy (Comm. Rep. 11.5.84, Glasenapp

v. Germany, in Eur. Court HR, Series A no. 104, p. 43, para. 88). They

contend, however, that the present case is quite different. While in

Glasenapp the very security of the constitutional system was at issue,

as exemplified by the reference to Article 17 (Art. 17) of the

Convention (para. 89), in the present case, the applicants wish to do

no more than participate in normal, legitimate political activities.

They underline that no complaint was ever made about their political

activities in the past. The applicants add that, in any event, the

"others" referred to in Article 10 para. 2 (Art. 10-2) must be

individuals in the first place, and that the provision requires at

least something more substantial than the Government's perception that

the rights of others are being protected.

46. Even if there were a legitimate aim for the interferences, the

applicants discern no "pressing social need" for them. They repeat

that there were never complaints about their political activities in

the past, and in particular there was never any call to use the various

disciplinary mechanisms which existed to deal with the case where an

officer's professional duties conflicted with his political activities.

The applicants point out that the Widdicombe report itself admitted

that there was no serious evidence of lack of impartiality in the

exercise of professional duties, or favouritism in local authority

appointments, arising out of the political commitments and activities

of local government officers. They consider that the Regulations

impose burdens which outweigh any "pressing social need" or any

supposed benefit. They underline that the Regulations prohibit not

only campaigning on behalf of a political party but also the expression

of views which might be identified with those of a particular party.

In the United Kingdom, personal views on a broad range of social,

economic and other issues could readily be associated with those of one

political party or another. Moreover, the ambit of the Regulations is

not confined to the actual conduct and intentions of PPRPs, but

restrictions are imposed on the basis of their apparent intentions and

of the alleged impression which is allegedly gained by those who

witness the individual PPRP speaking, or read or view written or

artistic work published by him (paras. 6 and 7 of the Schedule).

47. A further aspect of the case where the applicants see a lack of

proportionality between the effect of the Regulations and the aim

sought to be pursued lies in the width of the definition of PPRPs. The

applicants note that the definition includes chartered surveyors and

other professionally qualified people who advise local authority

committees yet whose advice relates solely to professional matters and

has no political content. In addition, local authorities may add to

the list of PPRPs, and the adjudicator may exempt posts, which may lead

to inconsistencies between local authorities. Finally in connection

with the definition of PPRPs, the applicants underline that whilst some

PPRPs are defined by the post itself, others are defined by reference

to a salary level. The salary limit was originally £19,500 and is now

£25,020.00. The applicants claim that the limit has not been updated

annually to keep pace with local government pay awards, so that each

year more and more posts fall into the category of PPRP without

reference to their function for reasons which are wholly arbitrary.

48. As to the exemption mechanism, the applicants note that the power

of the adjudicator extends only to posts included on lists

(Section 2 (1) (g) of the Act), that the function of the adjudicator

depends largely on the opinion of the employer, and that the

adjudicator has power, under Section 3 (2) (b) of the Act, to add to

the authority's list of PPRPs.

49. The Government do not accept that there has been an interference

with the applicants' Article 10 (Art. 10) rights. They recall that the

right of access to the public service is not guaranteed by the

Convention, and submit that measures which prescribe conditions of

employment within the public service regulate access to that service,

and therefore fall outside the scope of the Convention. They accept

that the Regulations do, to a certain extent, go beyond the limitations

imposed on officers' political activities before 1990, but underline

the advantages of having convention replaced by clear rules and clear

guidance.

50. On the assumption that there has been an interference with the

applicants' freedom of expression, the Government submit that any such

interference is "prescribed by law". They recall that the level of

precision must depend on the degree and content of the instrument in

question, the field it is designed to cover and the number and status

of those to whom it is addressed, and note that the Regulations in the

present case cover a wide field and a large number of employees. They

conclude that any interference meets the "Sunday Times" criteria of

accessibility and foreseeability (Eur. Court HR, Sunday Times v. the

United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31,

para. 39). In connection with the words "apparent intention" in paras.

6 and 7 of the Schedule to the Regulations, the Government claim that

those words set up an objective test of what a reasonable person would

perceive the intention of the speaker to be. They add that it is not

the employing authority which makes the final decision as to whether

the test is satisfied, but rather the courts to which a challenge to

disciplinary action could be taken. For the Government, the

Regulations are clear when taken as a whole: an officer will fall

within para. 6 of the Regulations if he is seeking to influence support

for a particular political party, but not if he is merely expressing

views on a politically controversial subject.

51. The Government claim that the measures are "necessary in a

democratic society" within the meaning of the Convention case-law.

Referring to the "duties and responsibilities" which freedom of

expression carries with it, the Government are of the opinion that

where, for example, an elected representative also has another job

which imposes duties and responsibilities, both sets of

responsibilities must be weighed: and that it is legitimate for a

national authority to make its own assessment of such conflicting

responsibilities where one of the purposes mentioned in Article 10

para. 2 (Art. 10-2) is present. An individual voluntarily accepts such

responsibilities on becoming a public servant.

52. As to the aim pursued by any interference, the Government refer

to the preamble to the Convention, which recites the importance of

effective political democracy, and the protection of which must also

be considered as the protection of the rights of others within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention. The

Government explain that there is a long-standing tradition of political

neutrality amongst local government officers, and that in such a

system, where permanent officers both advise on the decisions to be

taken by elected members, and execute those decisions when taken,

members of local government must be able to count on the first loyalty

of an officer to provide them with the best professional advice and to

execute the eventual decision, regardless of the officer's own

political views. Because of the nature of their duties and

responsibilities, senior local government officers must have the

respect and trust of those whom they advise, and of the public. The

political impartiality of local government officers has been viewed (by

the Local Authorities' Conditions of Service Advisory Board in evidence

to the Widdicombe Committee) as one of the bases on which the system

of local democracy in the United Kingdom has operated.

53. The Government accept that there will be cases where a senior

officer will be able to preserve his neutrality whilst being

politically active, but point to the risk that such activity will raise

doubts amongst councillors, and also members of the public, as to

whether that officer will give a higher priority to his professional

duties or to his publicly declared political views. In such a case,

the rights which the public may be considered to have in an impartial

service for their elected representatives would appear to be

threatened. The Government consider it to be important that those

rights are safeguarded, and that they are seen by the public to be

safeguarded.

54. In central government, there are well established rules

preventing those in posts concerned with the making and execution of

policy to undertake public political activity. The Government submit

that these rules are more restrictive than those affecting local

government employees. Although in the past the general tradition of

political impartiality was sufficient to maintain a suitable level of

confidence in local government officers' loyalty, the increasing

politicisation of local authorities in the 1980s (that is, the

organisation of local politics along party political lines) - together

with an increasing number of appointments where there was a fear that

the officers appointed would not give first loyalty to their

professional duties if there was a change of political control on the

relevant council - led to the appointment and recommendations of the

Widdicombe Committee.

55. As to the proportionality of the measures contained in the

Regulations with the aims pursued, the Government first note that the

restrictions apply only to a limited number of officials - about 47,000

out of a total local authority payroll of 2.3 million - and that the

rules apply to fewer officers than envisaged by the Widdicombe

Committee. It was considered necessary to impose a uniform rule on

local government officers, as the alternative - a wide prohibition on

public speaking with a discretion to allow exemptions - would have led

to inconsistencies in the granting of such permissions. The

Regulations sought to distinguish between matters which deal

legitimately with politically controversial matters (which are

permitted) and material which would call the political impartiality of

the officer into question. The mechanism for exemption from the

measures in certain cases also ensures that the Regulations only apply

where appropriate.

56. The Commission recalls that while it was open the High Court and

the Court of Appeal to examine general considerations relating to the

whole of the Regulations, the Commission is not required to examine the

relevant provisions of the Act and the Regulations in the abstract, but

must confine itself to the circumstances of the case before it (see,

for example, Eur. Court HR, Brogan v. the United Kingdom judgment of

29 November 1988, Series A no. 145-B, p. 29, para. 53).

57. Accordingly, the Commission will only consider the Regulations

to the extent that the applicants' freedom of expression was affected

by them.

(i) Interference

58. The Commission recalls that civil servants - using the term in

a broad sense, to include all public servants - do not fall outside the

scope of the Convention (Eur. Court HR, Vogt v. Germany judgment of

26 September 1995, Series A no. 323, p. 22, para. 43). In the present

case, the Regulations operated by way of new provision in their

contracts of employment over which they as individuals had no control.

The Regulations were drafted and inserted in the contracts not by the

employer, that is, the respective local authorities, but by the

Secretary of State for the Environment, acting under the powers vested

in him by the Act.

59. Each applicant was affected by the Regulations: Mr. Ahmed was

unable to stand for elected office; Mr. Perrin and Mr. Bentley had to

resign their respective positions, and could no longer canvass for

their wives in local elections. Mr. Brough, too, can no longer act as

Parliamentary Chairman of his party, and is prevented from speaking

publicly on issues such as housing and the health service. The

Commission considers that each of these activities was an exercise of

freedom of expression, and indeed the Government do not contest the

effect of the Regulations on the individual applicants.

60. The Commission accordingly finds that the introduction and

maintenance in force of the Regulations interfered with the freedom of

expression of each of the applicants.

(ii) Justification under para. 2 of Article 10 (Art. 10-2)

61. The interference with the applicants' freedom of expression will

be in breach of Article 10 (Art. 10) of the Convention unless it was

"prescribed by law", pursued one or more legitimate aim or aims as

defined in Article 10 para. 2 (Art. 10-2) and was "necessary in a

democratic society" to attain them (see the above-mentioned Vogt

judgment, p. 23, para. 58).

Prescribed by law

62. In order to satisfy the requirement that any interference be

"prescribed by law", the law in question must be adequately accessible

and be formulated with sufficient precision to enable the citizen to

regulate his conduct (Eur. Court HR, Sunday Times v. the United Kingdom

judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).

63. There is no dispute that the Regulations in the present case were

accessible. As to the precision with which the Regulations are

formulated, the Commission recalls that the level of precision required

of domestic legislation depends to a considerable degree on the content

of the instrument considered, the field it is designed to cover and the

number and status of those to whom it is addressed (Eur. Court HR,

Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B,

p. 35, para. 25).

64. In the present case, since the Regulations are intended to cover

a large number of local government employees, and since the

circumstances in which public statements may be made by those employees

on politically controversial matters differ widely, it is inevitable

that the Regulations are couched in relatively broad terms. Whilst the

references in paragraph 6 of the Schedule to the Regulations to the

"apparent intention" of the statement-maker are undoubtedly wide and

introduce an element of vagueness and uncertainty, the Commission

nevertheless considers that the provisions are sufficiently precise to

enable a local government officer to foresee with reasonable certainty

what is permitted and what is not. In this regard, the Commission

further notes the provisions of Regulation 4 which indicate the matters

which are to be taken into account in determining whether such an

"apparent intention" has been shown to exist.

65. The Commission finds that the interference with the applicants'

freedom of expression was "prescribed by law".

Legitimate aim

66. The Government see the aim of the Regulations as being to

safeguard political neutrality amongst local government officials, and

they regard that political neutrality as essential to the proper

functioning of the system of local government in the United Kingdom.

They accordingly regard the Regulations as protecting the rights of

others. The applicants disagree. They do not accept that the "rights

of others" can be served by a blanket ban on perfectly normal,

legitimate political activity of the type they wished to engage in.

67. The Commission recalls that in the above-mentioned Vogt case, the

European Court of Human Rights accepted that obligations imposed on

civil servants to uphold the constitutional system in Germany pursued

a legitimate aim within the meaning of Article 10 para. 2 (Art. 10-2)

(above-mentioned Vogt judgment, p. 25, para. 51). The Court noted that

the civil service in Germany is regarded as the guarantor of the

Constitution and democracy.

68. The Commission is not in a position to undertake a detailed

analysis of the precise role played by local government officers in the

constitutional structure of the United Kingdom, but it is clear that

there is a long tradition of abstention from active party politics on

the part of such officers, especially more senior officers. The

Commission finds that the Regulations - which imposed express and, in

part, new limitations on officers' political activities - were designed

to maintain and underpin that tradition, and to this extent may be

regarded in a similar light to the position of the German civil service

in the case of Vogt.

69. In the light of its conclusions under Article 10 (Art. 10) of the

Convention (para. 87, post), the Commission is not, however, required

finally to decide whether the Regulations pursued a legitimate aim

under Article 10 para. 2 (Art. 10-2), and if so which aim. It will,

for the purposes of the present Report, assume that the provisions were

designed to preserve the existence of an effective political democracy

and that such an aim is compatible with the aim of "protecting the

rights ... of others" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

Necessary in a democratic society

70. The basic principles laid down in determining whether a measure

is "necessary in a democratic society" within the meaning of Article 10

(Art. 10) of the Convention may be summarised as follows:

(a) Freedom of expression constitutes one of the essential

foundations of a democratic society, and applies not only to

information or ideas that are favourably received or regarded as

inoffensive or as a matter of indifference, but also to those

that offend, shock or disturb: such are the demands of that

pluralism without which there is no "democratic society".

Freedom of expression is subject to a number of exceptions which

must be interpreted narrowly.

(b) The adjective "necessary" implies the existence of a "pressing

social need". Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision, embracing both the law

and the decisions applying it.

(c) The task of the Convention organs is to review the decisions

delivered by the national authorities, in order to ascertain

whether the interference was "proportionate to the legitimate aim

pursued" and whether the reasons adduced by the national

authorities to justify it are "relevant and sufficient".

(d) These principles apply also to civil servants. Whilst it is

legitimate for a State to impose a duty of discretion on civil

servants, on account of their status, civil servants are

individuals and as such qualify for the protection of Article 10

(Art. 10) of the Convention. In the course of its determination

of whether a fair balance has been struck in the particular case,

the "duties and responsibilities" of civil servants assume a

special significance, which justifies leaving to the national

authorities a certain margin of appreciation in determining

whether the impugned interference is proportionate to the aim

(above-mentioned Vogt v. Germany judgment, pp. 25, 26, paras. 52

and 53).

71. The Commission notes that the Regulations in the present case are

of a far broader impact than the prohibition of membership of the DKP

in the case of Vogt: whilst the DKP was not an unlawful organisation,

the German courts at the relevant time had held that its aims were "the

overthrow of the social structures and the constitutional order of the

Federal Republic of Germany and the establishment of a political system

similar to that of the German Democratic Republic" (above-mentioned

Vogt judgment, p. 28, para. 58). The Regulations in the present case

were not conceived with a view to preventing political activity which

was in support of extremist parties, but rather had as their goal the

imposition of extensive restrictions on the political activity of those

affected - including activity in support of (or critical of) mainstream

parties.

72. Against the extent of the impact of the Regulations must be set

the fact that the Regulations in the present case apply only to a

certain class of local government officers. Teachers are expressly

excluded, and many other categories (such as social workers) are

excluded by the salary limits. In the event, the Regulations apply to

some 47,000 local government officers. Two types of criteria are used

in determining the officers to whom the Regulations apply. The holders

of specified posts are included (Section 2 (1) (a) - (f) of the Act:

Mr. Bentley is an example of this type of officer), and other officers

are subject to the Regulations if their posts figure on lists (Section

2 (1) (g): the posts of Mr. Ahmed and Mr. Brough were kept on lists

because they gave advice to their respective authorities).

73. The Commission notes that where a person is the holder of one of

the posts specified in Section 2 (1) (a) - (f), there is no possibility

of exemption from the Regulations.

74. A further matter of a general nature is the limited review of the

Regulations which was afforded by the domestic courts. Although the

applicants, with their trade union, were able to bring an application

for judicial review of the Regulations, they were not able to challenge

the necessity for the relevant provisions of the Act.

75. In the light of these general considerations on the Regulations,

the Commission will turn to the questions of whether there was a

"pressing social need" for the interferences with the applicants'

freedom of expression, and whether any such interference was

"proportionate to the legitimate aim pursued".

76. The Commission is assuming that the aim of maintaining a

tradition of political neutrality may justify new regulations. It

finds no reason to conclude that the legislation did not respond to a

perceived need in the United Kingdom. In this regard the Commission

notes that the issue was examined in detail by the Widdicombe Committee

which concluded, on the basis of all the evidence before it, that it

was necessary to underpin the neutrality of local government officers

by introducing formal rules similar to those already applicable in the

case of civil servants. However, given the importance of individual

freedom of expression as a key ingredient of a democratic society, the

Commission is of the opinion that that freedom cannot be excluded, even

in the context of public servants, without convincing justification.

77. In the context of the new rules which acted as a form of "prior

restraint" on the applicants' freedom of expression, the Commission

finds particularly relevant that the Government do not point to any

concrete indication that the activities of the individual applicants

could give rise to any fears that they were not carrying out their

professional duties adequately, or that their behaviour was likely to

lead to any loss of public confidence in the impartiality of local

government officers generally. Indeed if this had the case, the full

range of disciplinary measures would be open to the applicants'

respective employers.

78. The Commission is therefore required in this connection to look

at the way in which the Regulations, as rules which applied generally

to local government officers, affected and affect employees in the

applicants' position.

79. The Commission first notes that the restrictions on political

activity brought about by the Regulations covered a large number of

officials throughout the country - some 47,000 in all. The Regulations

became part of the respective employees' contracts by operation of law,

and at least in respect of those employees, such as the third

applicant, who are PPRPs by virtue of their position rather than

because they are included in the lists, there is no possibility of

applying for an exemption from the Regulations.

80. The Regulations therefore apply to local authority officers

generally. Local authorities have no discretion to introduce clauses

into contracts if and when they see fit, or to apply the Regulations

only to those considered to be tarnishing the impartiality of local

government officers.

81. In addition to the broad applicability of the Regulations, the

Commission also notes the considerable scope of activities to which the

Regulations apply. Thus apart from disqualification from membership

of a local authority (Section 1 (1) of the Act), PPRPs are not

permitted to announce an intention to stand as a candidate for election

to the House of Commons, the European Parliament or a local authority;

they may not be officers of a political party or branch if that

involvement would be likely to require them to participate in general

management, or to act on behalf of the party with outsiders; they are

not permitted to canvass on behalf of candidates in elections to the

House of Commons, the European Parliament or a local authority, and

they may not make any public pronouncement or publish any work with the

apparent intention of affecting public support for a political party

(that is, the matters referred to in Parts I and II of the Schedule to

the Regulations).

82. It is true that the extent of the effect of these rules may be

somewhat modified by Regulation 4 (b), which provides that in

determining whether there has been a breach of Part II of the Schedule,

regard must be had to whether the pronouncement or publication was part

of a campaign. On the other hand, Regulation 4 (a) requires regard to

be had to whether a political party was referred to, or whether the

work is identifiable as the view of one political party rather than of

another. Moreover, Regulation 4 relates only to Part II rules - that

is public pronouncements or publications of work which may affect

support for a political party. The other prohibitions - on announcing

an intention for candidature, canvassing and party management - apply

without the interpretation derived from Regulation 4.

83. The extent of applicability, the depth of the impact and the

inflexibility of the Regulations are apparent from the individual

applications before the Commission. Mr. Ahmed was refused a

certificate that he did not give advice regularly even though he had

not attended committees in the previous 12 months (as he would be

called on "in future"); notwithstanding the technical nature of the

advice he was giving, Mr. Perrin could not be considered for exemption,

and Mr. Bentley was not eligible for exemption because he was a non-

statutory chief officer. The applicants have each felt obliged to give

up the active, but uncontroversial roles they used to play in local

politics, roles in which they played a part in the pluralistic

democracy at a local level in the United Kingdom, where canvassing on

behalf of candidates at elections is a very common practice.

84. It is, of course, true that the applicants, as employees of their

respective local authorities, have "duties and responsibilities"

towards their employers which may affect the public expression of their

political views: given the tradition of political impartiality which

exists in the United Kingdom, and of which the applicants as relatively

senior officers were undoubtedly aware, there could be clear conflicts

of interest if, for example, individual employees were seen to be

challenging the policies of their employees, or if the effective and

proper performance of their duties was otherwise compromised by a real

or apparent lack of political impartiality. There is, however, no hint

of any such conflict in the present case, and indeed the Widdicombe

Report and the Government accept that in many instances, the political

activity to be curbed would not actually affect the independence of the

officer concerned.

85. Thus whilst the Commission accepts that the applicants' roles as

advisers to their local authorities carry "duties and

responsibilities", it does not accept that those "duties and

responsibilities" can justify new, statutory restrictions on normal

political activity such as the applicants were pursuing.

86. The Commission has further taken into account the margin of

appreciation which States enjoy in assessing the necessity for an

interference with Article 10 (Art. 10) of the Convention. However,

bearing in mind the applicability of the Regulations to a large class

of employees, with only limited possibilities of exemption, the extent

of the limitations on political activity which the Regulations brought

with them, the imposition of the Regulations by way of statutory

amendment to pre-existing contracts, and the absence of any clear need

for general statutory regulation of local authority officers' political

activity, the Commission finds that the restrictions on the applicants'

freedom of expression went beyond that margin of appreciation, and were

not proportionate to the aims sought to be pursued. They were not,

therefore, necessary in a democratic society within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

CONCLUSION

87. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention.

D. As regards Article 11 (Art. 11) of the Convention

88. Article 11 (Art. 11) of the Convention provides as follows:

"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."

89. The applicants claim that the Regulations restrict them in their

freedom to associate as they wish, and that the restrictions are not

compatible with para. 2 of Article 11 (Art. 11-2) of the Convention.

They repeat their arguments made under Article 10 (Art. 10) of the

Convention, and add that the final sentence of Article 11 para. 2

(Art. 11-2) cannot apply in their case.

90. The Government, too, repeat the essence of their submissions as

to Article 10 (Art. 10) of the Convention, but consider that the

applicants were in any event "members of the administration of the

State" within the meaning of the final sentence of Article 11 para. 2

(Art. 11-2) because the nature of their duties rendered it important

in order to secure the effectiveness of local government that they

should be and be seen to be politically impartial.

91. The Commission recalls that in the above-mentioned case of Vogt,

the European Court of Human Rights dealt separately with Articles 10

and 11 (Art. 10, 11) of the Convention (above-mentioned Vogt judgment,

p. 30, para. 51). In the present case, Article 11 (Art. 11) is

principally of relevance to the second, third and fourth applicants,

who each had to resign office with a political party because,

apparently, of paragraph 4 of the Schedule to the Regulations which,

inter alia, precludes a PPRP from holding any such office if his duties

would be likely to require him to participate in the general management

of the party or a branch of such party. The Commission notes that in

the case of Vogt, the question of membership of a political party was

central to the case, whereas in the present case, the applicants are

not prevented from joining a party, but are subject to limitations on

their activities within parties.

92. In the light of its findings above, which deal generally with the

impact of the Regulations on the applicants in the present case, the

Commission does not consider it necessary to examine separately the

complaints under Article 11 (Art. 11) of the Convention.

CONCLUSION

93. The Commission concludes, by 13 votes to 4, that in the present

case it is not necessary to consider whether there has been a violation

of Article 11 (Art. 11) of the Convention.

E. As regards Article 3 of Protocol No. 1 (P1-3) to the Convention

94. Article 3 of Protocol No. 1 (P1-3) to the Convention provides as

follows:

"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."

95. The applicants consider that the Regulations single out a large

group of persons in an arbitrary way for unfair treatment at elections.

96. The Government do not accept that a person who has voluntarily

assumed responsibilities towards the State has an absolute right to

stand for election. They recall that the rights guaranteed by

Article 3 of Protocol No. 1 (P1-3) are not absolute, and contend that

the Regulations do not deprive the rights of their effectiveness.

97. The Commission recalls that Article 3 of Protocol No. 1 (P1-3)

protects the right of the people by means of free elections to choose

the "legislature".

98. The Commission has held that metropolitan county councils in the

United Kingdom did not form part of the legislature in the United

Kingdom (Booth-Clibborn and others v. the United Kingdom, No. 11391/85,

Dec. 5.7.85, D.R. 43 p. 238), and the same applies, mutatis mutandis,

to elections to local authorities in the present case. Accordingly,

Article 3 of Protocol No. 1 (P1-3) is not applicable to elections to

local authorities in the present case.

99. The Commission recalls that questions concerning the

applicability of Article 3 of Protocol No. 1 (P1-3) to elections to the

European Parliament have been left open in all recent cases on the

point (see, eg, Andre v. France, No. 27759/95, Dec. 18.10.95,

concerning election deposits in European Parliament elections). In the

present case, the Commission will assume that Article 3 of

Protocol No. 1 (P1-3) is applicable to elections to the European

Parliament.

100. Article 3 of Protocol No. 1 (P1-3) guarantees the right to vote

and the right to stand as a candidate in elections to the

"legislature". The rights are not absolute, and there is room for

implied limitations. States may make the rights to vote and to stand

for election subject to conditions which are not in principle precluded

under Article 3 (Art. 3) provided such conditions are not arbitrary and

are not such as to impair the very essence of the right guaranteed.

Moreover, States enjoy a wide margin of appreciation in this area (see

Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Eur.

Court HR, Series A no. 113, p. 23, para. 52).

101. The aim of the limitation on standing for elections in the

present case was to prevent local government officers from being

associated with a particular party, as such association could be seen

to impinge on officers' political impartiality. The Commission has

accepted that this need for political impartiality is an acceptable

concern in the system of political democracy in the United Kingdom.

102. The Commission also notes that the restrictions on standing for

elections to the House of Commons or the European Parliament do not

have the same absolute character as those in Greek cases which the

Commission has considered (Nos. 18747/91, 19376/92 and 19379/92,

Gitonas and others v. Greece, Comm. Rep. 7.3.96; No. 27755/95,

Giakoumatos v. Greece, Comm. Rep. 21.1.97, both pending before the

European Court of Human Rights). In those cases, a person who had held

certain functions for even a short time within a specified period

before elections was prevented from standing in those elections at all.

In the present case, nothing prevents an individual from resigning his

position to enable him to stand for election to the House of Commons

or the European Parliament.

103. Accordingly, whilst an individual may well consider very

carefully whether he wishes to announce an intention to stand in an

election, given that he will not be able to continue in his functions

if he does, it cannot be said that the essence of the right to stand

as a candidate is denied, or that, in imposing such conditions, the

State exceeded its margin of appreciation.

CONCLUSION

104. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 3 of Protocol No. 1 (P1-3) to

the Convention.

F. Recapitulation

105. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention (para. 87).

106. The Commission concludes, by 13 votes to 4, that in the present

case it is not necessary to consider whether there has been a violation

of Article 11 (Art. 11) of the Convention (para. 93).

107. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 3 of Protocol No. 1 (P1-3) to

the Convention (para. 104).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

CONCURRING OPINION OF M. L. LOUCAIDES

I agree with the majority that in the present case there has been

a violation of Article 10 of the Convention, but my reasons for that

conclusion differ from those of the majority.

I believe that the interference with the applicants' freedom of

expression, in the form of the relevant Regulations, does not satisfy

the basic requirements of para 2. of Article 10 of the Convention.

More specifically, I find that the Regulations in question were not

formulated with sufficient precision so as to satisfy the requirement

of being "prescribed by law", and in any case they did not pursue any

of the legitimate aims for which an interference with the freedom of

expression is permissible under Article 10 para. 2 of the Convention.

I also find that the interference in question was in no way "necessary

in a democratic society".

As regards the incompatibility of the Regulations in question

with the required standard of precision, I agree with the applicants'

position and in particular that paras. 6 and 7 of the Schedule to the

Regulations adopt such a broad and vague test of restriction, that its

application cannot be foreseen with sufficient certainty. I am

referring to the test of "apparent intention" to affect public support

for a political party. In this respect I adopt the following from the

judgment of Justice Marshall in the U.S. Supreme Court case of Arnett

v. Kennedy (40 L Ed 2d 15, 76):

"We emphasise once again that '[p]recision of regulations must

be the touchstone in an area so closely touching our most

precious freedoms,' ...; [f]or standards of permissible statutory

vagueness are strict in the area of free expression ... Because

First Amendment freedoms need breathing space to survive,

government may regulate in the area only with narrow specificity

... When one must guess what conduct or utterances may lose him

his position, one necessarily will 'steer far wider of the

unlawful zone ...'. For '[t]he threat of sanctions may deter ...

almost as potently as the actual application of sanctions' ...

By the uncertainty of its scope, the standard here creates the

very danger of a chilling effect ... Employees are likely to

limit their behaviour to that which is unquestionably safe, ...

The dismissal standard hangs over their heads like a sword of

Damocles, ... That this Court will ultimately vindicate an

employee if his speech is constitutionally protected is of little

consequence - for the value of a sword of Damocles in that it

hangs - not that it drops. For every employee who risks his job

by testing the limits of the statute, many more will choose the

cautious path and not speak at all."

Furthermore, I am unable to see what is the legitimate aim

pursued by the Regulations in question. The Government sees the aim

of the Regulations as being to safeguard the "political neutrality" of

the officers concerned which neutrality, according to the Government,

is necessary in order to safeguard effective political democracy, the

protection of which must also be considered as the protection of "the

rights of others". I fail to understand this approach. In particular,

I do not see how effective political democracy or "the rights of

others" can be served by restricting the freedom of expression of local

government public officers on political matters.

Times have changed. The conditions for an effective democracy

and openness of government now demand that no distinctions on the basis

of the status of civil servants - in general - or their "duties or

responsibilities" be sustained as a ground for justification of

restrictions to the freedom of speech. The role and responsibilities

of every individual, including civil servants in particular, "for the

bringing about of political and social changes desired by people"

(Connick v. Myers, 75 L Ed, 2d, pp. 708, 718), for preventing abuses

by the State and generally for sustaining the values and principles of

democracy, is nowadays more important than ever. It is not enough to

declare that "freedom of expression constitutes one of the essential

foundations of a democratic society and one of the basic conditions for

its progress ... and that subject to paragraph 2 Article 10 of it is

applicable ... to information or ideas ... that offend, shock or

disturb", such being "the demands of that pluralism, tolerance and

broadmindedness, without which there is no democratic society"

(Castells v. Spain, judgment of 23 April 1992, Series A no. 236). For

such declarations to be meaningful, they must be applicable to every

person. There should be no distinction between more privileged and

less privileged individuals. The fact that individuals enter the civil

service of a country cannot be interpreted as placing them in a more

disadvantageous position vis-à-vis other individuals as regards human

rights.

It is in the interests of all the people in having a society in

which no one is intimidated with respect to his beliefs and their

expression. Civil servants are, as a class, those members of a society

most likely to have informed opinions on matters of public interest

concerning, in particular, their service. Accordingly, it is in the

interests of the public that civil servants should be able to speak out

freely on such questions without fear of retaliation. Such freedom

serves the interests of democracy; it does not undermine the confidence

of the public in the civil service but, on the contrary, it strengthens

such confidence, because citizens will get the benefit of unhindered

information regarding public affairs through diverse opinions, which

will provide a security for their own rights and liberty. This is in

line with the openness of government inherent in the concept of

democracy.

For the same reasons I find that in any event the Regulations in

question can in no way be considered "as necessary in a democratic

society".

(Or. English)

DISSENTING OPINION OF MRS. G.H. THUNE

Although with considerable hesitation, I have reached the

conclusion that Article 10 of the Convention has not been violated in

the present case.

I share the criticism expressed by the majority as to the wide

scope and inflexible character of the regulations in question. In

principle such far-reaching restrictions as we are concerned with here

appear both unreasonable and undesirable in a democratic State where

the election of members to Parliament as well as local governing bodies

is based on participation in political parties. Political activity

should in general be encouraged by national authorities who would be

well advised to refrain from imposing unnecessary restrictions.

The Court and the Commission have on numerous occasions expressed

the view that freedom of expression constitutes one of the essential

foundations of a democratic society. This would normally call for a

strict interpretation of Article 10 of the Convention where the margin

of appreciation afforded to the contracting States should be a limited

one.

In the present case we are faced with a situation which does not

only concern the individual freedom of expression, but also the

neutrality of local government officers and possible obstacles to them

standing for election on a political platform. A balance must be struck

since any limitation on public servants' active participation in

political life, automatically implies limitations on their freedom of

expression. I take as a starting point that the national authorities

are in the best position to assess the relevant elements on which a

conclusion is to be drawn. In the present case this was done by the

Widdicombe Committee which examined the issue in detail and on the

basis of all the evidence before it concluded that it was necessary to

underpin the neutrality of local government officers by introducing

formal rules similar to those already applicable in the case of civil

servants (paragraph 76 of the Report). In this context I recall that

the applicants do not, ultimately, challenge the view of the Widdicombe

Committee that for local government to function effectively in the

United Kingdom, officers need to be able to give independent advice to

their council. The applicants' complaint is rather that the

Regulations went too far in that they prohibit activities which do not,

in fact, compromise the applicants' ability to perform their

professional duties independently of party influence.

Given that the need for an independent executive in local

government seems to be generally accepted, it seems to me that the

applicants' "duties and responsibilities" can reasonably be said to

include refraining from the type of political activities prohibited by

the Regulations. I cannot find that the introduction of the

Regulations affected the applicants' freedom of expression in a manner

incompatible with the margin of appreciation which must be allowed to

the respondent State in cases of the present kind.

For similar reasons, I would also find that there has been no

violation of Article 11 of the Convention.

(Or. English)

DISSENTING OPINION OF MRS. J. LIDDY

JOINED BY MM. B. MARXER AND G. RESS

1. We agree that there has been an interference with the applicants'

freedom of expression and that the interference was prescribed by law

for the reasons given by the majority.

2. We also consider that the Regulations pursued a legitimate aim

of protecting the rights of others within the meaning of Article 10

para. 2. The maintenance of the tradition of abstention from active

party politics on the part of certain public servants can be regarded

as aimed at protecting (a) the interests of individual members of the

public who have occasional or routine dealings with the administration

and who wish to rely on there being an apolitical approach by the

individual dealing with the file; (b) the interests of fellow-employees

or new candidates for appointment in local government offices in there

being a system which ensures, insofar as possible, that promotions and

appointments are based on factors such as merit and experience rather

than political affiliations; and (c) the right of elected politicians

on local government bodies to rely on transparently impartial advice

and briefing.

3. With regard to the necessity of the Regulations in a domestic

society, we agree with Mrs. Thune that these Regulations do not only

concern individual freedom of expression but also the neutrality of

local government officers. We recall that the applicants have not

shown that in practice they are applied in an unduly harsh fashion.

There does not appear to be any case-law concerning disciplinary

proceedings brought for breach of the Regulations, or challenges to

decisions of local authorities or the adjudicator under the 1989 Act

or the Regulations. Article 10 expressly refers to the "duties and

responsibilities" of those who wish to avail themselves of their

freedom of expression, and it is legitimate for States to impose a duty

of discretion on public servants. It has not been shown that the duty

of discretion is interpreted in practice in such fashion as to stifle

reasonable exchanges of views and ideas on topics of current interest.

In the absence of practical examples indicating an unreasonable

approach to the balancing of the interests at stake, we are unable to

base ourselves on the majority's analysis of the Regulations at

paragraphs 80 to 82 of the Report, and to find a violation of Article

10. It appears to us, on the contrary, that it was within the margin

of discretion of the United Kingdom to adopt measures which can be

regarded as necessary not merely in a democratic society but also for

the maintenance of a democratic society the functioning of which is

based on the tradition of abstention from active party politics on the

part of certain public servants.

4. We also consider that there has been no violation of Article 11

in the light of the foregoing considerations. We note, moreover, that

the Regulations do not prohibit membership of any political party or

trade union, and do not affect management of trade unions.

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AHMED AND OTHERS v. THE UNITED KINGDOM

AHMED AND OTHERS v. THE UNITED KINGDOM

LEXI