The Gazette 1981

GAZETTE

SEPTEMBER 1981

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".

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.

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".

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

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".

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".

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.

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".

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