The Gazette 1981

GAZETTE

SEPTEMBER 1981

of association if in reality the freedom of action or

choice which remains available to him is either non

existent or so reduced as to be of no practical

value".

In the light of this statement the question may properly be

asked whether the Trade Union Act, 1971, which makes it

very difficult, in reality, to form a new trade union in

Ireland, infringes Article II of the Convention. A positive

answer to this question would have very serious

consequences for the legislative policy of tackling the

problem of multiplicity of unions by discouraging the

creation of new unions.

The Court then observed that, read in the light of

Articles 9 and 10 of the Convention, one of the purposes

of freedom of association is the protection of personal

opinion, viz. freedom of thought, conscience, religion.

Consequently any attempts to compel someone to join an

association contrary to his convictions violate Article 11.

Finally the Court turned to consider whether the

legislation in this case was protected by Article 11, para.

2 of the Convention. (It may be noted that this is the first

occasion on which this paragraph has been considered in

detail by the Court). Under the terms of paragraph 2, an

interference with freedom of association would be justified

(a) it was "prescribed by law",

(b) it had an aim or aims that is or are legitimate

under that paragraph, and

(c) it is "necessary in a democratic society" for the

aforesaid aim or aims.

The Court did not find it necessary to consider the first

two of these three conditions but instead focussed on

whether the interference with freedom of association,

contained in T.U.L.R.A. 1974 as amended by the 1976

Act, was "necessary in a democratic society" in order to

attain the advantages inherent in the closed shop system,

for example, the fostering of good industrial relations,

avoiding inter-union disputes, counter-acting the

inequality of bargaining power, etc. The Court re-stated a

number of principles relevant to the assessment of the

"necessity" of a given measure which it had first

enunciated in the

Handyside

case.

First, "necessary"

cannot be construed as broadly as "useful" or

"desirable", and so the fact that the closed shop

agreement might have produced certain advantages is not

conclusive of the issue. Secondly, because pluralism,

tolerance and broadmindness are characteristics of a

democratic society, a balance has to be struck between

the dominant position of a majority, and the position of

minorities. Consequently the fact that the applicants were

in a minority was again not conclusive of the question.

Lastly, any restrictions imposed on a Convention right

have to be "proportionate to the legitimate aim

pursued".

Applying these principles to the facts of this

particular case, the Court concluded that the provisions

of T.U.L.R.A. 1974 as amended by the 1976 Act,

relating to the closed shop, were not necessary for the

protection of the interests of union members and that the

detriment suffered by the applicants was not

proportionate to the aims pursued.

The Implications of these Decisions:

The decisions of the Court of Human Rights in the

Compte, Van Leuven and De Meyere

case, and in the

Young, James and Webster

(i.e. "British Rail") case, have

added greatly to our knowledge of the effect of Article 1 1

of the Convention. In particular they afford us a better

insight into the protection afforded to the "negative

freedom of association" by the Convention.

A number of important points emerge from these

cases:

(a) Article 11 does not protect the right of the

individual not to have to join a "public law institution."

Therefore members of the Professions can lawfully be

compelled to register with, and be subject to the discipline

of, professional bodies established by statute. However

they cannot be prevented from forming or joining other

professional associations, in addition to the appropriate

public law institution. Trade unionists may, no doubt,

find it difficult to understand why the negative freedom of

association should apply to trade unions but not to public

law institutions. In this respect, it is interesting to note

that the United States Supreme Court has refused to

distinguish between public law institutions and trade

unions. In the case of

Railway Employees' Dept., A.F.L.

v. Hanson,

which concerned the constitutionality of a

legislative provision authorising the conclusion of union

shop agreements, Douglas J., delivering the judgment of

the Court, stated that in such a case

"there is no more an infringement or impairment of

First Amendment rights than there would be in the

, case of a lawyer who by state law is required to be a

member of an integrated bar".

(b) It would appear that Article 11 does afford limited

protection to the "negative freedom of association",

though the remarks of the Court in the

British Rail

case

were very cautious on this point. The decision in that case

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