Case no 11603/85
The Commissions finds - in agreement with the parties - that there has been an interference by a public authority with the exercise of the applicants' right, under Article 11 para. 1 (Art. 11-1), to form and to join trade unions, namely in that on 25 January 1984, upon instructions of the Prime Minister as Minister for the Civil Service, the Secretary of State for Foreign and Commonwealth Affairs issued two certificates with the result that GCHQ staff were henceforth no longer permitted to be members of any existing trade union. (...)
The Commission observes that the first sentence of Article 11 para. 2 (Art. 11-2) provides criteria for justifying an interference with the rights under Article 11 para. 1 (Art. 11-1). The second sentence specifically envisages restrictions on the exercise of these rights by various categories of persons employed by the State. The Commission finds that the restrictions at issue fall to be examined primarily under the second sentence, if the staff serving at GCHQ can be considered as "members ... of the administration of the State".
The Commission must therefore turn its attention to the meaning and scope of these terms. (...)
The Commission has examined whether the staff serving at GCHQ fall under the terms "members ... of the administration of the State". To a certain extent, the meaning and scope of these terms is uncertain and the Commission will not attempt to define them in detail. Nevertheless, the Commission notes that the terms are mentioned, in the same sentence in Article 11 para. 2 (Art. 11-2), together with "members of the armed forces (and) of the police". In the present case, the Commission is confronted with a special institution, namely GCHQ, whose purpose resembles to a large extent that of the armed forces and the police insofar as GCHQ staff directly or indirectly, by ensuring the security of the respondent Government's military and official communications, fulfil vital functions in protecting national security.
The Commission is therefore satisfied that the staff serving at GCHQ can be considered as "members ... of the administration of the State" within the meaning of the second sentence of Article 11 para. 2 (Art. 11-2) of the Convention. It must therefore examine whether the further conditions of the second sentence of Article 11 para. 2 (Art. 11-2) have been met, in particular whether the restrictions at issue were "lawful" within the meaning of that provision. (...)
The Commission has examined first the applicants' submission that the term "restrictions" in the second sentence of Article 11 para. 2 (Art. 11-2) cannot imply complete suppression of the exercise of the right in Article 11 (Art. 11). However, the Commission recalls that the same term is also employed in the first sentence of Article 11 para. 2 (Art. 11-2). This provision has been interpreted by the Commission as also covering a complete prohibition of the exercise of the rights in Article 11 (Art. 11) (see e.g. Application No. 8191/78, Rassemblement jurassien and Unité jurassienne v. Switzerland, 10.10.79, D.R. 17 p. 93). Accordingly, the term "restrictions" in the second sentence of Article 11 para. 2 (Art. 11-2) is sufficiently broad also to cover the measures at issue.
Second, the Commission notes the applicants' submissions that the term "lawful" in the second sentence of Article 11 para. 2 (Art. 11-2) includes the principle of proportionality. In this respect, the Commission finds that, even if the term "lawful" ("légitime") should require something more than a basis in national law, in particular a prohibition of arbitrariness, there can be no doubt that this condition was in any event also observed in the present case.
The Commission recalls its case-law according to which States must be given a wide discretion when ensuring the protection of their national security (see Leander v. Sweden, Comm. Report 17.5.1985, para. 68).
In the present case, the Commission has considered the Government's position when issuing the certificates. In particular, the Government had to ensure that the functioning of GCHQ would no longer be vulnerable to disruption by industrial action. After industrial action had occurred in 1981 and once the Government had acknowledged the functions of GCHQ in May 1983, the time and means were lacking for the Government to conduct substantial negotiations with the trade unions. The guarantees offered by the latter were in the Government's assessment not adequate. The Government were aware that trade union officials outside GCHQ could organise industrial action within GCHQ in which GCHQ staff would participate as loyal trade union members. Thus, it could not be excluded that industrial action could again occur at GCHQ at any moment. In this respect the Commission notes in particular that the House of Lords, in its judgment of 2 November 1984, unanimously accepted that the basis of the Government's actions related to the interests of national security.
The Commission considers that in this light and against the whole background of industrial action and the vital functions of GCHQ the action taken, although drastic, was in no way arbitrary. The measures would therefore also be "lawful" within a wider meaning of that term in the second sentence of Article 11 para. 2 (Art. 11-2).
The Commission is thus satisfied that the measures at issue, while interfering with the applicants' rights under Article 11 para. 1 (Art. 11-1), were justified under the second sentence of Article 11 para. 2 (Art. 11-2) as being "lawful restrictions (imposed) on the exercise of these rights by members ... of the administration of the State". Therefore, there is no further need to examine the measures in relation to the conditions of the first sentence of Article 11 para. 2 (Art. 11-2). It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.back