The Gazette 1981

SEPTEMBER 1981

GAZETTE

enactment of T.U.L.R.A. and the amending Act of 1976. It is submitted that failure to act should give rise to liability as Article 1 of the Convention places a positive obligation on all the Contracting Parties to "secure to everyone within (their) jurisdiction the rights and freedoms defined in . . . (the) Convention". The significance of the Court's ruling as to the basis of the State's liability in this case is that the subsequent remarks of the Court as to a violation of Article II must be taken as referring to those legislative provisions which permitted dismissal for a breach of a closed shop agreement, rather than to the closed shop agreement itself. Thus it would still appear to be lawful for unions to conclude closed shop agreements with employers, though of course they cannot have such agreements legally enforced and it is unlikely that they can compel employers to dismiss those employees who refuse to be bound by the agreement. They may, however, be entitled to take action short of this in order to encourage employees to abide by such agreements. Having established the responsibility of the U.K. Government, the Court then proceeded to consider the effect of Article 11. One of the principal issues before the Court was whether the Article protected, by implication, the "negative" freedom of association. The respondent Government contended that such a right had been deliberately excluded from the Convention, citing in support of this contention the following passage in the travaux preparatoires: "On account of the difficulties raised by the 'closed-shop' system in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which 'no-one may be compelled to belong to an association' which features in (Article 20(2) of) the United Nations' Universal Declaration". 8 The Court did not think that it was necessary to decide this question in the instant case, but observed that the "notion of a freedom implies some measure of freedom of choice as to its exercise". 9 In the present case, this apparently meant that the negative right of association did not fall completely outside the scope of Article 11 and that Article 11 could be used to restrain certain types of compulsion to join a trade union. 10 The Court stressed, however, that it was obliged to consider only the issues raised by the concrete case before it and therefore it did not intend to examine the general legal position of the closed shop system but rather the effects of that system on the applicants. Those effects were that existing employees were threatened with dismissal for refusing to comply with the closed shop agreement. In the opinion of the Court, this was a very serious form of compulsion and one which "strikes at the very substance of the freedom guaranteed by Article 11". 11 Accordingly there had been a violation of the applicants' rights. Furthermore, by specifying the unions which the applicants were obliged to join, the closed shop agreement unlawfully restricted the applicants' freedom of choice. "An individual does not enjoy the right to freedom

The Court held that Article 11 did not apply to "public law institutions." The Belgian Medical Association was such an institution because "(I)t was founded not by individuals but the legislature; it remains integrated within the structures of the State and judges are appointed to most of its organs by the Crown. It pursues an aim which is in the general interest, namely the protection of health, by exercising under the practice of medicine. Within the context of this latter function, the Ordre is required in particular to keep the register of medical practitioners. For the performance of the tasks conferred on it by the Belgian State, it is legally invested with administrative as well as rule-making and disciplinary prerogatives out of the orbit of the ordinary law . . . and, in this capacity, employs processes of a public authority". 5 Although the concept of "public law institution" is here described rather than defined, it is arguable that it encompasses such professional bodies in Ireland as the Irish Medical Council, the Incorporated Law Society of Ireland and the Honourable Society of King's Inns. The Court did enjoin on such institutions one requirement if they are not to infringe Article 11 — viz. their members must not be prevented from forming or joining other professional associations. As the applicants in the instant case were free to join several associations which existed to protect the professional interests of medical practitioners, the Court concluded that there had been no violation of Article 1 1. The case of Young, James and Webster (August 1981) The applicants in this case were former employees of British Rail who had been dismissed because they refused to join specified trade unions pursuant to an agreement negotiated between British Rail and the National Union of Railwaymen (N.U.R.), the Transport Salaried Staffs Association (T.S.S.A.) and the Associated Society of Locomotive Engineers and Firemen (A.S.L.E.F.). They alleged, inter alia, that the enforcement of the Trade Union and Labour Relations Act 1974 (T.U.L.R.A.) and the Trade Union and Labour Relations (Amendment) Act 1976, which permitted their dismissal from employment when they objected on reasonable grounds to joining a trade union, violated their rights under Article ll. 6 A preliminary issue which arose concerned the responsibility of the United Kingdom Government in the instant case. The Court ruled that: "If a violation of one of those rights and freedoms [guaranteed by the Convention I is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged". 7 Thus, in the context of industrial relations, the State may be held responsible for the violation of an employee's rights even where that employee is not employed by the State. It is not clear, however, whether a failure on the part of the State to enact legislation protecting the rights of its citizens can result in the State being held responsible for an infringement of those rights by a third party — the U.K. Government had conceded, in the instant case, that its responsibility would be engaged by virtue of the

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