EHRM, 08-04-2014, nr. 31045/10

The two organisations stated their view that the right to strike is absolutely essential to the functioning of trade unionism in free societies, and that a total ban on secondary action is unacceptable. They referred to a series of international treaties that expressly recognise the right to strike, or have been authoritatively interpreted as protecting that right. In the jurisprudence of the ILO supervisory bodies, the right to strike was widely applied and strongly protected. There could be restrictions, but these must not be such as to result in practice in an excessive limitation of the right to strike. Sympathy strikes had to be permitted. This was also clearly established in the jurisprudence of the ECSR. The complete ban on secondary action meant that workers in dispute could not in any circumstances call on members of their own union for support, or of any other trade union with which their own was associated at a higher level (e.g. federation or confederation). This diminished the very purpose of joining a trade union, and undermined the purpose of this dimension of Article 11, which reflected the principle that workers should be free to combine for mutual support in times of crisis. The ban was a relatively recent innovation, coming in more than eight decades after the foundational statute in British industrial relations, the Trade Disputes Act of 1906. The Government had failed to justify the restriction before the ILO Committee of Experts. In particular, that Committee had not accepted the Government's argument that the ban was made necessary by the decentralised nature of the British system of industrial relations. On the contrary, the Committee considered that this made it more important for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, by transferring work or by hiving off companies. Workers in the United Kingdom were forbidden to take action in support of colleagues employed by another employer forming part of the same group of companies, even though they stand to be affected by the outcome of the dispute. That could not be right. The two organisations expressed their dismay that the Government was ignoring the need to amend the law and refusing to bring it up to the level of minimum international standards. The centre of gravity among European states appeared to lie somewhere between the total prohibition of such action and no restriction at all. The total ban in force in the United Kingdom was an unjustifiable restraint on the right to freedom of association, which could not be justified in all circumstances to protect the rights and freedoms of others.

Liberty considered that the ban on secondary action was an unjustified interference with the rights of workers and their trade unions. In many situations, workers were not in fact able to exercise their right under Article 11 to take industrial action; for example, those employed in very small establishments, or working for entities where terms and conditions are effectively determined by a third party such as a client, or those with insecure employment status. The traditional set-up in which all the members of the same workforce had the same employer no longer corresponded to the reality of a large and growing category of workers. It had been estimated that over 3 million jobs were now outsourced in the British economy, a great many of these from the public sector, where union density had traditionally been highest. This fragmentation of the traditional labour market had implications for labour law generally, and made it increasingly difficult for trade unions to continue to defend the interests of their members, who were increasingly dispersed among different economic operators. In this context, the effect of the ban on secondary strikes was to greatly reduce the value of trade union membership, as it prevented the union from mobilising broadly in solidarity with and so as to protect the interests of members in dispute with their direct employer. The ban made it easy for companies to undercut the influence of trade unions by re-configuring their organisations. It was clearly established in domestic case-law that the corporate veil could not be lifted in such circumstances. This deprived them of the possibility of taking effective action against those with real decision-making power or control. Before 1980, the scope for secondary strikes was very broad, as illustrated by the House of Lords in the case N.W.L. Ltd. v. Woods ([1979] 1 WLR 1294), which recognised the lawfulness of industrial action by dock workers taken in solidarity with foreign seafarers working for very little pay on flagged-out vessels. The ban denied some workers their only source of effective union support in the form of financial pressure exerted on the employer's commercial relationships. It also hindered freedom of association in small firms (less than 21 employees), which were excluded from the statutory procedure for recognising trade unions. If such an employer refused to recognise a trade union on a voluntary basis, the ban on secondary action made it impossible for fellow members in other workplaces to take industrial action so as to induce the employer to accept trade union representation.

Liberty argued that this Court had consistently protected the substance of workers' freedom of association, and had never accorded any significance to whether a strike was of the primary type or any other type. While the right to take secondary action could be restricted in accordance with the terms of Article 11 § 2, and balanced against competing rights and freedoms, this could not go so far as to impair the very essence of the right.

The Government replied to Liberty's observations, observing that the latter addressed broader, background issues that were not relevant to the facts of the present case. While accepting that the structure of the labour market had evolved over the past two decades, the Government disagreed that this had generally hindered the enjoyment by the workers concerned of the benefits of trade union rights. Practice actually showed that trade unions were capable of acting effectively in such circumstances — the three examples referred to by Liberty were in fact instances of the successful resolution of an industrial dispute via trade union involvement (the three examples were: one involving airline catering staff, one concerning bus drivers in London during the 2012 Olympics, and one involving fuel lorry drivers). The charge that workers were prevented from taking action against the party that really determines their terms and conditions was no more than a hypothesis — no actual examples had been given. Nor had there been any decline in the number of days lost to strike action each year for the past 20 years, which tended to refute Liberty's view that domestic law had increasingly restricted trade union freedom. In this respect, the United Kingdom was close to the EU and OECD average. As to the assertion that the threshold of 21 employees represented a loophole that employers could easily exploit to in order to avoid having to recognise a trade union, the Government did not see its relevance to the facts of the case. Even so, there were safeguards in place to prevent employers from circumventing their statutory duty. Only genuine small firms were excluded, and that was for valid policy reasons. Finally, the Government submitted that there was no explicit support in the Court's case-law for the proposition that the right to take secondary action is an essential element of freedom of association, or that the ban could not be justified under Article 11 § 2.

The Court must first determine whether, as the applicant argued, secondary action comes within the scope of Article 11 of the Convention or, as the Government argued, it does not. The question is a novel one, not having directly arisen in any previous case.

What the Government propose is a literal reading of the second clause of the first paragraph of Article 11. Although it is possible to derive such a meaning from the language of the text taken on its own, the Court would recall that, as provided in Article 31 § 1 of the Vienna Convention on the Law of Treaties, the provisions of a treaty are to be interpreted in accordance with their ordinary meaning, in their context and in the light of its object and purpose. Furthermore, it has often stated that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention of ‘any relevant rules of international law applicable in relations between the parties’, and in particular the rules concerning the international protection of human rights (see X. v. Latvia [GC], no. 27853/09, § 92, ECHR 2013, with further references therein). In this regard, it is clear from the passages set out above (paragraphs 26–37) that secondary action is recognised and protected as part of trade union freedom under ILO Convention No. 87 and the European Social Charter. Although the Government have put a narrower construction on the positions adopted by the supervisory bodies that operate under these two instruments, these bodies have criticised the United Kingdom's ban on secondary action because of a perceived risk of abuse by employers, and have illustrated this with some examples. The Government further queried the authority, for the purposes of the Convention, to be attributed to the interpretative pronouncements of the expert bodies tasked with supervising compliance with these specialised international standards. The Court will consider this later in its analysis. For now it suffices to refer to the following passage from the Demir and Baykara judgment (§85):

It would be inconsistent with this method for the Court to adopt in relation to Article 11 an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law. In addition, such an understanding of trade union freedom finds further support in the practice of many European States that have long accepted secondary strikes as a lawful form of trade union action.

It may well be that, by its nature, secondary industrial action constitutes an accessory rather than a core aspect of trade union freedom, a point to which the Court will revert in the next stage of its analysis. Nonetheless, the taking of secondary industrial action by a trade union, including strike action, against one employer in order to further a dispute in which the union's members are engaged with another employer must be regarded as part of trade union activity covered by Article 11.

The Court therefore concludes that the applicant's wish to organise secondary action in support of the Hydrex employees must be seen as a wish to exercise, free of a restriction imposed by national law, its right to freedom of association within the meaning of Article 11 § 1 of the Convention. It follows that the statutory ban on secondary action as it operated in the example relied on by the applicant constitutes an interference with the applicant's rights under this provision. To be compatible with paragraph 2 of Article 11, such interference must be shown to be ‘prescribed by law’, to pursue a legitimate aim, and to be ‘necessary in a democratic society’ to achieve those aims.

There was no dispute between the parties that the interference was prescribed by law. The Court agrees.

As to the aim of the interference, the applicant argued that it found no legitimation in Article 11 § 2. It clearly did not concern national security or public safety, the prevention of disorder or crime, or the protection of health or morals. As for the remaining aim recognised as legitimate, namely the ‘protection of the rights and freedoms of others’, the applicant's argument was that it would be illogical to restrict the right to strike on account of the impact of such action on the employer. The very purpose of strike action is to have a strong impact on the employer's position, to induce the employer to meet the demands of labour. It would be erroneous to allow this to serve as a justification for curbing the right to strike. The applicant therefore invited the Court to reconsider the reasoning followed in this regard in the UNISON case (UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I), in which the Court had accepted that the restriction on strike action concerned the ‘rights of others’, referring to the employer. The economic interests of an employer should not be permitted to take precedence over the human rights of employees. Such reasoning contradicted the approach of the ECSR, for example, which did not accept any principle of proportionality between the taking of strike action and the consequences of this on the employer's interests. The applicant further argued that the UNISON decision sat ill with the earlier judgment of this Court in the case Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996-II). There the Court had not entertained the applicant's complaint that the trade union boycott of his business was an interference with his rights under Article 1 of Protocol No. 1. Nor had it accepted that the impact on his business, although it caused considerable economic damage, gave rise to any positive obligation on the State to come to his aid. The Court should instead take a stringent approach as it had done in two cases involving sanctions against public-sector employees who participated in a one-day strike (Karaçay v. Turkey, no. 6615/03, 27 March 2007 and Kaya and Seyhan v. Turkey, no. 30946/04, 15 September 2009). In each case the Court had not been persuaded that the interferences in question pursued legitimate aims, although it ultimately had left that point open in view of its finding that the interferences complained of were not ‘necessary in a democratic society’.

The Government contended that the ban sought to protect the rights and freedoms of others, above all of persons not connected to the industrial dispute. In light of the potentially far-reaching and uncontrollable effects that secondary action could have on third parties, protecting the latter was clearly a legitimate objective that Parliament had pursued when it introduced the ban. The Government added that it could be readily envisaged how secondary action could threaten the enjoyment of rights protected by the Convention, such as the right to make one's living.

The Court considers that the present case is distinguishable from the UNISON case. The latter concerned primary strike action, the complaint being that the applicant trade union had been prevented from taking industrial action in defence of its members' interests in the future, in the context of the impending privatisation of hospital services. During the domestic proceedings the Court of Appeal held that the impact of such a strike on members of the public was irrelevant to the legal issues arising. This Court took the same view, and for this reason the aim of ‘protection of the rights and freedoms of others’ was taken in the circumstances as referring just to the employer's rights. The ground for distinguishing the present case is the fact that it concerns secondary action. As the Government have argued, by its nature secondary action may well have much broader ramifications than primary action. It has the potential to impinge upon the rights of persons not party to the industrial dispute, to cause broad disruption within the economy and to affect the delivery of services to the public. Accordingly, the Court is satisfied that in banning secondary action, Parliament pursued the legitimate aim of protecting the rights and freedoms of others, not limited to the employer side in an industrial dispute.

It remains to be determined whether the statutory ban on secondary industrial action, as it affected the ability of the applicant to protect the interests of its Hydrex members, can be regarded as being ‘necessary in a democratic society’. To be so considered, it must be shown that the interference complained of corresponds to a ‘pressing social need’, that the reasons given by the national authorities to justify it are relevant and sufficient and that it is proportionate to the legitimate aim pursued.

The Court will consider first the applicant's argument that the right to take strike action must be regarded as an essential element of trade union freedom under Article 11, so that to restrict it would be to impair the very essence of freedom of association. It recalls that it has already decided a number of cases in which restrictions on industrial action were found to have given rise to violations of Article 11 (see for example Karaçay v. Turkey, no. 6615/03, 27 March 2007; Dilek and Others v. Turkey, nos. 74611/01, 26876/02 and 27628/02, 17 July 2007; Urcan and Others v. Turkey, nos. 23018/04, 23034/04, 23042/04, 23071/04, 23073/04, 23081/04, 23086/04, 23091/04, 23094/04, 23444/04 and 23676/04, 17 July 2008; Enerji Yapı-Yol Sen v. Turkey, no. 68959/01, 21 April 2009). The applicant placed great emphasis on the last of these judgments, in which the term ‘indispensable corollary’ was used in relation to the right to strike, linking it to the right to organise (Enerji, at §24). It should however be noted that the judgment was here adverting to the position adopted by the supervisory bodies of the ILO rather than evolving the interpretation of Article 11 by conferring a privileged status on the right to strike. More generally, what the above-mentioned cases illustrate is that strike action is clearly protected by Article 11. The Court therefore does not discern any need in the present case to determine whether the taking of industrial action should now be accorded the status of an essential element of the Article 11 guarantee.

What the circumstances of this case show is that the applicant in fact exercised two of the elements of freedom of association that have been identified as essential, namely the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and the right to engage in collective bargaining. The strike by its Hydrex members was part of that exercise, and while it did not achieve its aim, it was not in vain either since it led the company to revise its offer, which the applicant then commended to its members. Although the Government criticised the applicant for supporting the revised offer at the time and then reversing its stance in the present proceedings, the Court recognises that the applicant is bound to respect its members' negative vote. Yet the fact that the process of collective bargaining and industrial action, including strike action against the employer of the union members who were the subject of the dispute, did not lead to the outcome desired by the applicant and its members does not mean that the exercise of their Article 11 rights was illusory. The right to collective bargaining has not been interpreted as including a ‘right’ to a collective agreement (see in this respect §158 of Demir and Baykara judgment, where the Court observed that the absence of any obligation on the authorities to actually enter into a collective agreement was not part of the case). Nor does the right to strike imply a right to prevail. As the Court has often stated, what the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests (Demir and Baykara, §141; more recently Sindicatul ‘Păstorul cel Bun’ v. Romania [GC], no. 2330/09, §34, 9 July 2013). This the applicant and its members involved in the dispute were largely able to do in the present case.

In previous trade union cases, the Court has stated that regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. Since achieving a proper balance between the interests of labour and management involves sensitive social and political issues, the Contracting States must be afforded a margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members may be secured. In its most recent restatement of this point, and referring to the high degree of divergence it observed between the domestic systems in this field, the Grand Chamber, considered that the margin should be a wide one (Sindicatul ‘Păstorul cel Bun’, cited above, §133). The applicant relied heavily on the Demir and Baykara judgment, in which the Court considered that the respondent State should be allowed only a limited margin (see §119 of the judgment). The Court would point out, however, that the passage in question appears in the part of the judgment examining a very far-reaching interference with freedom of association, one that intruded into its inner core, namely the dissolution of a trade union. It is not to be understood as narrowing decisively and definitively the domestic authorities' margin of appreciation in relation to regulating, through normal democratic processes, the exercise of trade union freedom within the social and economic framework of the country concerned. The breadth of margin will still depend on the factors that the Court in its case-law has identified as relevant, including the nature and extent of the restriction on the trade union right at issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the apposite international instruments (Demir and Baykara, §85).

If a legislative restriction strikes at the core of trade union activity, a lesser margin of appreciation is to be recognised to the national legislature and more is required to justify the proportionality of the resultant interference, in the general interest, with the exercise of trade union freedom. Conversely, if it is not the core but a secondary or accessory aspect of trade union activity that is affected, the margin is wider and the interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade union freedom are concerned.

As to the nature and extent of the interference suffered in the present case by the applicant in the exercise of its trade union freedom, the Court considers that it was not as invasive as the applicant would have it. What the facts of the case reveal is that the applicant led a strike, albeit on a limited scale and with limited results. It was its wish to escalate the strike, through the threatened or actual involvement of hundreds of its members at Jarvis, another, separate company not at all involved in the trade dispute in question, that was frustrated. The Court has noted the applicant's conviction that secondary action would have won the day. Inevitably, that can only be a matter of speculation — including as to the result of any ballot on the subject — since that course of action was clearly ruled out. It cannot be said that the effect of the ban on secondary action struck at the very substance of the applicant's freedom of association. On this ground the case is to be distinguished from those referred to in paragraph 84 above, which all concerned restrictions on ‘primary’ or direct industrial action by public-sector employees; and the margin of appreciation to be recognised to the national authorities is the wider one available in relation to the regulation, in the public interest, of the secondary aspects of trade union activity.

As for the object of the interference in issue in the present case, the extracts from the debates in Parliament preceding the passage of the Employment Act 1980 make clear the legislative intention to strike a new balance in industrial relations, in the interests of the broader economy, by curbing what was a very broad right to take secondary action. A decade later, the Government of the day considered that even in its more limited form secondary action posed a risk to the economy and to inward investment in the country's economic activity. As a matter of policy it considered that restricting industrial action to primary strikes would achieve a more acceptable balance within the British economy. The Government have reiterated that position in the present proceedings. That assessment was sharply contested at the time by the opposition in Parliament, and is rejected by the applicant as grounded in animus towards trade unions rather than any clear evidence of direct damage to the economy. Yet the subject-matter in this case is certainly related to the social and economic strategy of the respondent State. In this regard the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and what are the legislative measures best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy (see among many authorities Stummer v. Austria [GC], no. 37452/02, §89, ECHR 2011).

There are, it is true, factors going in another direction as regards the range of permissible choices available to the United Kingdom legislature.

The first of these is the extent to which it can be said that there is common ground among European States as regards secondary action. The comparative information adduced before the Court reveals a spectrum of national positions, ranging from a broadly permissive stance in countries such as Greece, Finland, Norway and Sweden, to those that do not recognise or permit it. The other States mentioned above (at paragraphs 38–41) are located between these two outer points. The Government played down the significance of the comparative perspective, emphasising the deep structural and cultural differences among European States in the field of industrial relations. The Court acknowledges that diversity, which it has recognised in other cases concerning the rights of trade unions (e.g. Sindicatul ‘Păstorul cel Bun’, cited above, §133, and Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, §58, ECHR 2006-I). It is nevertheless clear that, with its outright ban on secondary action the respondent State stands at one end of the comparative spectrum, being one of a small group of European States to adopt such a categorical stance on the matter. The varied comparative picture, and the position of the United Kingdom within it, do not in themselves, however, mean that the domestic authorities have stepped outside their legitimate margin of appreciation in regulating this aspect of trade union activity.

Secondly, a prominent feature of this case is the wealth of international-law materials. The United Kingdom banned secondary action more than two decades ago and throughout this time has been subject to critical comment by the ILO Committee of Experts and the ECSR. The applicant prayed these materials in aid. The Government did not consider the particular criticisms made to be relevant to the factual situation denounced in the present case, or otherwise significant. The Court will now examine this point.

The Government disputed the relevance to this case of the two bodies' criticisms in light of the manner in which they were formulated, as they contemplated quite different potential situations to the one impugned by the applicant (see paragraphs 33 and 37 above).

The Government did not regard the ECSR's assessment as an authoritative source of law, since, despite the independence and expertise of its members, the ECSR did not possess judicial or quasi-judicial status. Its role was to report to the Committee of Ministers. The Court observes that the ECSR's competence is stipulated in the Protocol Amending the European Social Charter (also known as the ‘Turin Protocol’, Council of Europe Treaty Series No. 142), namely to ‘assess from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter’. It is true that this Protocol has not entered into force as several States party to the Charter, including the United Kingdom, have not ratified it. Yet the interpretative value of the ECSR appears to be generally accepted by States and by the Committee of Ministers. It is certainly accepted by the Court, which has repeatedly had regard to the ECSR's interpretation of the Charter and its assessment of State compliance with its various provisions (e.g. Demir and Baykara; also Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, §39, ECHR 2006-II, a trade union case in which the Court described the ECSR as a ‘particularly qualified’ body in this domain).

As for the absence of any recommendation by the Committee of Ministers to the United Kingdom in relation to this issue, the Court notes first of all that the role of the Committee of Ministers under the Turin Protocol is to address recommendations to States on a selective basis, guided by social, economic and other policy considerations. Its role is not to endorse the conclusions of the ECSR. Secondly, the Court notes that the Governmental Committee of the European Social Charter has taken a first step in the direction of a Committee of Ministers recommendation on the issue of secondary action, by adopting a warning to the United Kingdom that ‘urged the Government to take all adequate steps to bring the situation into conformity with the Charter’ (see its Report concerning conclusions XIX-3 (2010), T-SG (2012) 1 final, at p. 59).

With respect to the ILO Committee of Experts, the Government made a similar observation — that body was not formally competent to give authoritative interpretations to ILO Conventions. It drew the Court's attention to an on-going disagreement within the ILO precisely regarding the legal status or even existence of a right to strike. The Committee of Experts had recently recognised the limits of its role, stating that ‘[its] opinions and recommendations are not binding within the ILO supervisory process and are not binding outside the ILO unless an international instrument expressly establishes them as such or the supreme court of a country so decides of its own volition.’ (from the foreword to Collective Bargaining in the Public Service: A Way Forward, a report of the ILO Committee of Experts to the 102^nd session of the International Labour Conference, 2013). This text goes on to describe the Committee of Expert's interpretations as ‘soft law’. The foreword concludes (§8):

The Court does not consider that this clarification requires it to reconsider this body's role as a point of reference and guidance for the interpretation of certain provisions of the Convention (see generally Demir and Baykara, cited above, §§65–86). While the Government referred to disagreements voiced at the 101^st International Labour Conference, 2012, it appears from the records of that meeting that the disagreement originated with and were confined to the employer group (Provisional Record of the 101^st Session of the International Labour Conference, 19 (Rev.), §§82–90). The Governments who took the floor during that discussion are reported as saying that the right to strike was ‘well established and widely accepted as a fundamental right’. The representative of the Government of Norway added that her country fully accepted the Committee of Experts' interpretation that the right to strike was protected under Convention No. 87. In any event, the respondent Government accepted in the present proceedings that the right afforded under Article 11 to join a trade union normally implied the ability to strike (see paragraph 62 above).

The foregoing analysis of the interpretative opinions emitted by the competent bodies set up under the most relevant international instruments mirrors the conclusion reached on the comparative material before the Court, to wit that with its outright ban on secondary industrial action, the respondent State finds itself at the most restrictive end of a spectrum of national regulatory approaches on this point and is out of line with a discernible international trend calling for a less restrictive approach. The significance that such a conclusion may have for the Court's assessment in a given case was explained in the Demir and Baykara judgment in the following terms (at §85):

The Grand Chamber's statement reflects the distinct character of the Court's review compared with that of the supervisory procedures of the ILO and the European Social Charter. The specialised international monitoring bodies operating under those procedures have a different standpoint, shown in the more general terms used to analyse the ban on secondary action. In contrast, it is not the Court's task to review the relevant domestic law in the abstract, but to determine whether the manner in which it actually affected the applicant infringed the latter's rights under Article 11 of the Convention (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §116, ECHR 2012; also Kart v. Turkey [GC], no. 8917/05, §§ 85–87, ECHR 2009 (extracts)). The applicant as well as the third parties dwelt on the possible effect of the ban in various hypothetical scenarios, which could go as far as to exclude any form of industrial action at all if the workers directly concerned were not in a position to take primary action, thereby, unlike in the present case, striking at the very substance of trade union freedom. They also considered that the ban could make it easy for employers to exploit the law to their advantage through resort to various legal stratagems, such as de-localising work-centres, outsourcing work to other companies and adopting complex corporate structures in order to transfer work to separate legal entities or to hive off companies (see paragraphs 33 and 37 above). In short, trade unions could find themselves severely hampered in the performance of their legitimate, normal activities in protecting their members' interests. These alleged, far-reaching negative effects of the statutory ban do not however arise in the situation at Hydrex. The Court's review is bounded by the facts submitted for examination in the case. This being so, the Court considers that the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained within the range of permissible options open to the national authorities under Article 11 of the Convention.

The domestic authorities' power of appreciation is not unlimited, however, but goes hand in hand with European supervision, it being the Court's task to give a final ruling on whether a particular restriction is reconcilable with freedom of association as protected by Article 11 (Vörður Ólafsson v. Iceland, no. 20161/06, §76, ECHR 2010). The Government have argued that the ‘pressing social need’ for maintaining the statutory ban on secondary strikes is to shield the domestic economy from the disruptive effects of such industrial action, which, if permitted, would pose a risk to the country's economic recovery. In the sphere of social and economic policy, which must be taken to include a country's industrial relations policy, the Court will generally respect the legislature's policy choice unless it is ‘manifestly without reasonable foundation’ (Carson and Others v. the United Kingdom [GC], no. 42184/05, §61, ECHR 2010). Moreover, the Court has recognised the ‘special weight’ to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (see in the context of Article 10 of the Convention the case MGN Limited v. the United Kingdom, no. 39401/04, § 200, 18 January 2011, referring in turn to Hatton and Others v. the United Kingdom [GC], no. 36022/97, §97, ECHR 2003-VIII, where the Court adverted to the ‘direct democratic legitimation’ that the legislature enjoys). The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

The Court must also examine whether or not the contested restriction offended the principle of proportionality. The applicant argued that it did, given its absolute character, which completely excluded any balancing of the competing rights and interests at stake and prohibited any differentiation between situations. The Government defended the legislature's decision to eschew case-by-case consideration in favour of a uniform rule, and contended that any less restrictive approach would be impracticable and ineffective. In their submission, the inevitable variations in the potentially numerous individual cases such as the present one are not such as to disturb the overall balance struck by Parliament.

The Court observes that the general character of a law justifying an interference is not inherently offensive to the principle of proportionality. As it has recently recalled, a State may, consistently with the Convention, adopt general legislative measures applying to pre-defined situations without providing for individualised assessments with regard to the individual, necessarily differing and perhaps complex circumstances of each single case governed by the legislation (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §107, 22 April 2013, with many further references concerning different provisions of the Convention and Protocol No. 1). That does not mean the specific facts of the individual case are without significance for the Court's analysis of proportionality. Indeed, they evidence the impact in practice of the general measure and are thus material to its proportionality (ibid., §108). As already stated, the interference with the applicant's freedom of association in the set of facts at Hydrex relied on by it cannot objectively be regarded as especially far-reaching.

The risks attendant upon any relaxation of the ban constitute a relevant consideration, which is primarily for the State to assess (ibid., §108). In this respect, the applicant has argued that it would have limited its action to a secondary strike at Jarvis, with no further spill-over effects. That can only be a matter of speculation however. As the materials in the case- file show, the very reason that caused Parliament to curb the broad scope for secondary action was its capacity, pre-1980, to spread far and fast beyond the original industrial dispute. It is to that situation that, according to the applicant, the United Kingdom should return if it is to conform to the requirements of Article 11.

As has been recognised in the case-law, it is legitimate for the authorities to be guided by considerations of feasibility, as well as of the practical difficulties — which, for some legislative schemes, may well be large-scale — to which an individuated approach could give rise, such as uncertainty, endless litigation, disproportionate public expenditure to the detriment of the taxpayer and possibly arbitrariness (ibid.). In this regard it is relevant to recall that for a period of ten years, 1980–1990, the United Kingdom found it possible to operate with a lighter restriction on secondary action (see paragraphs 23–24 above). The Government have not argued that this legislative regime was attended by the difficulties referred to above, or that this was why the ban was introduced. The applicant did not comment in detail on the legal position during that period. It took the view that the question of its compatibility with the Convention was ‘of entirely academic interest’, though added that were the point relevant it would argue such a restriction would not be acceptable. The Court observes that though the legislative history of the United Kingdom points to the existence of conceivable alternatives to the ban, that is not determinative of the matter. For the question is not whether less restrictive rules should have been adopted or whether the State can establish that, without the prohibition, the legitimate aim would not be achieved. It is rather whether, in adopting the general measure it did, the legislature acted within the margin of appreciation afforded to it (Animal Defenders, §110) — which, for the reasons developed above, the Court has found to be a broad one — and whether, overall, a fair balance was struck. Although the applicant has adduced cogent arguments of trade union solidarity and efficacy, these have not persuaded the Court that the United Kingdom Parliament lacked sufficient policy and factual reasons to consider the impugned ban on secondary industrial action as being ‘necessary in a democratic society’.

The foregoing considerations lead the Court to conclude that the facts of the specific situation challenged in the present case do not disclose an unjustified interference with the applicant's right to freedom of association, the essential elements of which the applicant was able to exercise, in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work (see paragraphs 15–16 above). In this legislative policy area of recognised sensitivity, the respondent State enjoys a margin of appreciation broad enough to encompass the existing statutory ban on secondary action, there being no basis in the circumstances of this case to consider the operation of that ban in relation to the impugned facts at Hydrex as entailing a disproportionate restriction on the applicant's right under Article 11.

Accordingly, no violation of Article 11 of the Convention can be held to have occurred on the facts of the present case.

In closing, the Court would stress that its jurisdiction is limited to the Convention. It has no competence to assess the respondent State's compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. Nor should the conclusion reached in this case be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and by the ECSR.