EHRM, 27-02-2007, nr. 11002/05

The Government accepted that section 174 represented an interference with rights under Article 11 § 1 in interfering with the autonomy which a trade union would otherwise possess in the matter of determining its membership. The restrictions imposed in respect of membership of a political party were, however, justified as necessary and proportionate. They relied on the importance of the countervailing rights of trade union members and prospective members to freedom of expression and freedom of association which would be engaged by expulsion from a trade union. Those rights were at the very foundation of democratic society, not least as the case concerned sanctions in respect of membership of a political party. They also claimed that a wide discretion remained for trade unions to expel or exclude on grounds of political activities. Section 174 only imposed a limited restriction on expelling those with views inimical to the trade union's objectives; it was only the applicant's own error in approach that led to a problem as there was ample conduct by Mr Lee, going beyond mere membership of the BNP, which the applicant could have relied on in order to found an entirely lawful decision to expel him.

The Government also emphasised the special status of trade unions which set them apart from other voluntary associations, pointing out that they play a potentially very important role in the working lives of individuals and exercising a direct influence over matters such as pay, holidays and other terms and conditions of employment, such that the Government were justified in imposing some limits on the applicant's power to confer or withhold the considerable benefits of membership. Finally, they relied on the wide margin of appreciation which applied when striking a balance between the autonomy of trade unions and the Articles 10 and 11 rights of individual members and prospective members.

The applicant submitted that there was no justification for the interference with its right to determine its membership. There was no interference with Mr Lee's freedom of expression as expulsion did not interfere with his right to express his political views. In any event any sanction was minimal and did not take priority over its right, and its members' rights, to exercise their own freedom of association and expression. Mr Lee never claimed that he suffered any detriment from exclusion. It referred to Article 17 to the effect that Article 10 would not protect some-one engaged in destroying other rights and freedoms. Since it was committed to opposing race discrimination, it would interfere with its rights, and its members, to be forced to admit into membership a person who was a member of such a right wing organisation. It did not accept that section 174 imposed a limited restriction, pointing out that it simply did not wish to associate with those whom they regarded as fascists or members of extreme right wing parties, whether active or not. It claimed that it had the right to dissociate itself from those whose political membership they abhorred. While Mr Lee's status as an activist might furnish greater reason to expel him, this did not touch on the fundamental issue. It would be acceptable if section 174 were framed so as to limit exclusion to membership of a party the objectives of which were contrary to the objectives of the trade union.

The applicant did not consider its role as a trade union was significant as alleged, since the collective bargaining that it was involved in applied to all, not just its members. There was nothing to suggest that Mr Lee lost any benefit in his working life from exclusion from ASLEF. Finally the applicant denied that there was a wide margin of appreciation as this was a situation where domestic law ran counter to freedom of association and considered that the Court was not precluded from examining the proportionality of the measure and ensuring a fair balance was struck.

The essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected. The right to form and join trade unions is a special aspect of freedom of association which also protects, first and foremost, against State action. The State may not interfere with the forming and joining of trade unions except on the basis of the conditions set forth in Article 11 § 2 (see Young, James and Webster v. United Kingdom,. Commission's report of 14 December 1979, § 162, Eur. Court H.R., Series B no. 39, p .45

The right to form trade unions involves, for example, the right of trade unions to draw up their own rules and to administer their own affairs. Such trade union rights are explicitly recognised in Articles 3 and 5 of ILO Convention No. 87, the provisions of which have been taken into account by the Convention organs in previous cases (see e.g. Cheall v. the United Kingdom, no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, p. 178; Wilson & the National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 34, ECHR 2002-V). Prima facie trade unions enjoy the freedom to set up their own rules concerning conditions of membership, including administrative formalities and payment of fees, as well as other more substantive criteria, such as the profession or trade exercised by the would-be member.

As an employee or worker should be free to join, or not join a trade union without being sanctioned or subject to disincentives (e.g.Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, mutatis mutandis, Wilson & the National Union of Journalists and Others, cited above), so should the trade union be equally free to choose its members. Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership. By way of example, it is uncontroversial that religious bodies and political parties can generally regulate their membership to include only those who share their beliefs and ideals. Similarly, the right to join a union ‘for the protection of his interests’ cannot be interpreted as conferring a general right to join the union of one's choice irrespective of the rules of the union: in the exercise of their rights under Article 11 § 1 unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union (Cheall, cited above; see also Article 5 of the European Social Charter and the Conclusions of the European Committee of Social Rights, Relevant International Materials, paragraphs 22–24 above ).

This basic premise holds good where the association or trade union is a private and independent body, and is not, for example, through receipt of public funds or through the fulfilment of public duties imposed upon it, acting in a wider context, such as assisting the State in securing the enjoyment of rights and freedoms, where other considerations may well come into play (e.g.Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, § 50, Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, § 26–27, where in providing education throughout the country, the State is responsible for both public and privately run schools §§26–27; or, mutatis mutandis, organisational frameworks for trades or professions where membership may well be compulsory or highly regulated e.g. public law institutions which are not covered by Article 11 § 1 at all: Sigurður A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, § 31).

Accordingly, where the State does intervene in internal trade union matters, such intervention must comply with the requirements of Article 11 § 2, namely be ‘prescribed by law’ and ‘necessary in a democratic society’ for one or more of the permitted aims. In this context, the following should be noted.

Firstly, ‘necessary’ in this context does not have the flexibility of such expressions as ‘useful’ or ‘desirable’ (Young, James and Webster, cited above, § 63).

Secondly, pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’ (Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. For the individual right to join a union to be effective, the State must nonetheless protect the individual against any abuse of a dominant position by trade unions (see Young, James and Webster judgment, cited above, § 63). Such abuse might occur, for example, where exclusion or expulsion from a trade union was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship (see Cheall, cited above, Johanssen v. Norway, no. 13537/88, Comm. Dec. 7.5.90).

Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (amongst many authorities, Handyside, cited above, p. 23, § 49).

Fourthly, where there is a conflict between differing Convention rights, the State must find a fair and proper balance (see no. 11366/85, Comm. Dec 16.10.86, DR 50 p. 173; Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, §§ 42–44).

Finally, in striking a fair balance between the competing interests, the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (amongst many authorities, Hatton and Others v. the United Kingdom[GC], no. 36022/97, § 98, ECHR 2003-VIII). However, since this is not an area of general policy, on which opinions within a democratic society may reasonably differ widely and in which the role of the domestic policy-maker should be given special weight (see e.g.James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation ‘available to the legislature in implementing social and economic policies should be a wide one’), the margin of appreciation will play only a limited role.

The question that arises in the present case concerns the extent to which the State may intervene to protect the trade union member, Mr Lee, against measures taken against him by his union, the applicant.

It is accepted by the parties in this case that section 174 had the effect in this case of prohibiting the applicant from expelling Mr Lee as it barred unions from such action where it was motivated, at least in part, by membership of a political party. This constituted an interference with the applicant's freedom of association under the first paragraph of Article 11 which requires to be justified in the terms set out above.

In the context of the case, lawfulness is not an issue. Nor is it disputed that the measure had the aim of protecting the rights of individuals, such as Mr Lee, to exercise their various political rights and freedoms without undue hindrance. The crucial question is whether the State has struck the right balance between Mr Lee's rights and those of the applicant trade union.

Taking due consideration of the Government's argument as to the importance of safeguarding fundamental individual rights, the Court is not persuaded however that the measure of expulsion impinged in any significant way on Mr Lee's exercise of freedom of expression or his lawful political activities. Nor is it apparent that Mr Lee suffered any particular detriment, save loss of membership itself in the union. As there was no closed shop agreement for example, there was no apparent prejudice suffered by the applicant in terms of his livelihood or in his conditions of employment. The Court has taken account of the fact that membership of a trade union is often regarded, in particular due to the trade union movement's historical background, as a fundamental safeguard for workers against employers' abuse and it has some sympathy with the notion that any worker should be able to join a trade union (subject to the exceptions set out in Article 11 § 2in fine). However, as pointed by the applicant, ASLEF represents all workers in the collective bargaining context and there is nothing to suggest in the present case that Mr Lee is at any individual risk of, or is unprotected from, any arbitrary or unlawful action by his employer. Of more weight in the balance is the applicant's right to choose its members. Historically, trade unions in the United Kingdom, and elsewhere in Europe, were, and though perhaps to a lesser extent today are, commonly affiliated to political parties or movements, particularly those on the left. They are not bodies solely devoted to politically-neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues. There was no hint in the domestic proceedings that the applicant erred in its conclusion that Mr Lee's political values and ideals clashed, fundamentally, with its own. There is no indication that the applicant had any public duty or role conferred on it, or has taken the advantage of state funding, such that it may reasonably be required to take on members to fulfil any other wider purposes.

As regards the Government's assertion that domestic law would have permitted the expulsion of Mr Lee if the applicant had restricted its grounds to conduct not related to his membership of the BNP, the Court would note that the Employment Tribunal found that the applicant's objections to Mr Lee were primarily based on his membership of the BNP. It does not find it reasonable to expect the applicant to have used the pretext of relying purely on Mr Lee's conduct which was largely carried out by him as a member of, and reflected his adherence to the aims of, the BNP.

Accordingly, in the absence of any identifiable hardship suffered by Mr Lee or any abusive and unreasonable conduct by the applicant, the Court concludes that the balance has not been properly struck and that the case falls outside any acceptable margin of appreciation.

There has, accordingly, been a violation of Article 11 of the Convention.