Joint DISSENTING OPINION OF JUDGES SPIELMANn, PEKKANEN AND VAN DIJK

1. To our regret we are not able to join the majority in their conclusion that Article 10 has not been violated in the present case. We agree that the interference with the applicants’ right to freedom of expression was prescribed by law. We can also accept, be it with some hesitation, that the United Kingdom authorities, by enacting and implementing the impugned Regulations, pursued a legitimate aim, namely the protection of the rights of others, although we would highlight the risk of that notion being stretched so far as to lose almost all distinct meaning if it is held to cover “rights” such as that to effective political democracy at the local level.

We cannot persuade ourselves, however, that the interference was “necessary in a democratic society”, given, on the one hand, the scope of its effects and, on the other hand, the aims pursued.

2. The starting-point for the weighing of the different aspects and elements of the case has to be – as is also recalled in the judgment (paragraph 55) – that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment, and that, consequently, precisely to strengthen democratic society, the necessity to limit that freedom “must be convincingly established” (see the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25 § 52).

This holds good even more so in the case of restrictions on freedom of expression which have a preventive character: “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 60).

3. The above principles also apply in relation to civil servants; “as a general rule the guarantees of the Convention extend to civil servants” (see the Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104, p. 26, § 49; the aforementioned Vogt judgment, p. 26, § 53). There is no reason, and indeed no room, for an inherent limitation in respect of the civil service. Article 10 does, of course, refer in its second paragraph to “duties and responsibilities”, but that does not mean that this provision contains an implied limitation for certain individuals or groups; it is primarily up to those exercising their right to freedom of expression to fulfil those duties and responsibilities. Only if they fail to do so in one or more concrete cases, or if there is the imminent danger of such a failure, would there be grounds for introducing legislative or administrative measures to ensure the proper fulfilment of these duties and responsibilities; but even then only to the extent “necessary in a democratic society”. We cannot read in the second paragraph of Article 10 any specific ground of limitation for civil servants nor can we see any justification for such a specific ground if applied in a general, categorical way. In that respect there is a clear difference between, on the one hand, Article 10 and, on the other hand, Article 11 of the Convention; only the latter Article provides expressly for the possibility to restrict the right concerned for members of the administration of the State.

4. Was the interference of the applicants’ right of freedom of expression “necessary in a democratic society”? To answer this question we will successively address the two component aspects: was there a pressing social need for the interference, and was the scope of the interference proportionate to the aim pursued?

5. Was there a pressing social need for the Regulations in issue and for their application to the applicants?

According to the Widdicombe Committee there was a need for regulation. The Committee referred to a tradition of a corps of politically neutral officers and to an increased risk of senior officers’ abusing their positions for political reasons. At the same time, however, the Committee indicated that no serious problems had arisen in the past and that there had been no cases of disciplinary action being taken. Nor had there been any complaints from citizens or local administrations.

The mere fact that the Committee noticed a change of atmosphere in recent years in the direction of stronger party affiliation of civil servants, especially at the local government level, does not in itself mean that the same standard of political neutrality in public service could not be maintained without recourse to such restrictive regulations as those in issue. In particular, it has not convincingly been argued by the Government why civil servants would not, as a rule, be responsible enough to decide for themselves the sort of political action their position permits and does not permit, subject to ex post facto disciplinary supervision. In that respect, it seems relevant for the assessment of the necessity in a democratic society test that in other member States of the Council of Europe, which claim to be strong democracies as well, a regulation with similar far-going restrictions to the freedom of expression of civil servants has not been considered necessary. There, the primary responsibility and discretion is placed on the civil servants themselves, with possibilities for corrective but not preventive restraint.

We are inclined to agree with the Canadian Supreme Court, quoted by Liberty in its submission to the Court, which held that public servants cannot be silent members of society and that as a general rule all members of society should be permitted to participate in public discussion of public issues.

Therefore, in view of the fact that (1) the United Kingdom has a long history without such comprehensive and far-reaching restrictions, which apparently had not given rise to any major problems; (2) this was recognised by the Widdicombe Committee, which also reported that there had been no need to use the instrument of disciplinary measures; and (3) other democratic societies appear to function without such general and far-reaching restrictions, we come to the conclusion that the existence of a pressing social need for the introduction of such general limitations such as those in issue, and more particularly their application to the applicants, has not sufficiently been demonstrated by the British Government. Indeed, strengthening democracy at the expense of freedom of expression may be justified in extreme circumstances only, since logically such a measure would seem to be counterproductive.

6. Even if there is a pressing social need for the interference concerned, the latter must be proportionate to the legitimate aim pursued. Are the Regulations themselves and the way in which they have been applied proportionate to the aim of strengthening democracy?

The Regulations are said to affect only 2% of civil servants. However, that still is a considerable number; in a qualitative sense also the civil servants concerned represent an important segment of the local civil service. For them, the situations in which they have to abstain from political activities, according to the Schedule, are potentially very broad; in fact, almost all political opinions and activities may in some way or another be associated with a political party. This means that the civil servants concerned may feel under what could be called permanent self-censorship in order not to endanger their positions.

In addition, the following aspects weigh in their favour:

(a) the Regulations do not make a clear distinction between service and private life (see the above-mentioned Vogt judgment, p. 28, § 59); what the majority states in that respect in paragraph 63 of the judgment would not seem to be well-founded;

(b) possibilities for exemptions exist only for officers of the second and third categories, and even then only to a limited extent;

(c) the Regulations prohibit the civil servants concerned from standing for Parliament or for the European Parliament unless they first give up their positions in the local administration, and we have not found any indication that leave of absence is granted until the outcome of the elections is known. This particular interference can hardly be deemed instrumental in strengthening democracy, since a healthy democracy has need of the best and most experienced parliamentarians;

(d) there has been no suggestion that the applicants fell short of their responsibilities and duties as civil servants, or have shown any lack of impartiality; and

(e) the authorities could have used other, less restrictive ways and means to act against abuses of positions or against threats to the impartiality of civil servants.

This leads us to the conclusion that the proportionality requirement has not been met either.

7. For all the above-stated reasons we are of the opinion that the interference complained of was not necessary in a democratic society and, consequently, was not justified under the second paragraph of Article 10.

In our opinion, this conclusion compels itself in the present case in an even more forceful way than in the Vogt case, where the Court found a violation of Article 10. In the latter case the restraint imposed on the applicant was not of a preventive but of a corrective character; moreover specific political activities were involved which affiliated the applicant to a political party having as its aim the undermining of the constitutional system of the State concerned.

8. Since we conclude that Article 10 has been violated in the present case, we agree with the majority of the Commission that the complaint under Article 11 did not give rise to any separate issue.

9. With respect to Article 3 of Protocol No. 1, we share the unanimous opinion that the rights to vote and to stand for elections laid down therein are not absolute rights, and that the restrictions contained in the Regulations as applied to the applicants did not limit the very essence of these rights.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 65/1997/849/1056. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.

[5] 1. The Court’s slightly too detailed reasoning in the instant case is unsatisfactory, particularly in two respects. Firstly, the Court found it necessary to refer once more to the States’ “margin of appreciation”; that seems in particular to imply that it considers equally acceptable a system permitting the situations prohibited by the system the applicants complained of. Such relativism is rather worrying, even though it can be explained by the excessive permissiveness of many States with regard to such situations. Secondly, the Court appears to attach too much importance to the fact that only a limited number of people were affected by the measures in issue, which suggests that a more general prohibition would have been less acceptable. It is regrettable that the Court did not more clearly acknowledge the merit of the principle applied in the present case by the United Kingdom.