Lexploria

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)

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AHMED AND OTHERS v. THE UNITED KINGDOM

AHMED AND OTHERS v. THE UNITED KINGDOM

LEXI