Case no 22954/93
I. Alleged violation of article 10 of the convention
39. The applicants maintained that the introduction and application of the Local Government Officers (Political Restrictions) Regulations (see paragraphs 26–33 above) constituted an unjustified interference with their rights to freedom of expression, having regard to the impact which the impugned measures had on the pursuit by them of normal political activities. (...)
A. As to the applicability of Article 10 and the existence of an interference
41. The Court notes that the guarantees contained in Article 10 of the Convention extend to the applicants irrespective of their status as public servants employed by local government authorities (see, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 22, § 43; and see paragraph 56 below). This has not been disputed by those appearing before the Court. Nor has it been disputed that the Regulations interfered with the exercise by the applicants of their rights to freedom of expression by curtailing in various ways their involvement in certain forms of political activities. The Court for its part also considers that there have been interferences with the applicants’ rights to freedom of expression and it accepts in this respect the Commission’s summary of the situation which resulted for each of the applicants by virtue of the fact that the nature of his duties brought him within the ambit of the parent legislation and hence the implementing Regulations: Mr Ahmed was unable to stand for elected office; Mr Perrin and Mr Bentley had to resign their respective positions and could no longer canvas for their wives in local elections; Mr Brough could no longer act as Parliamentary Chairman of his political party. All of these activities involved the exercise by the applicants of their rights to freedom of expression in various ways and in particular their rights to impart information and ideas to third parties in the political context.
B. As to whether the interferences were justified
42. The Court observes that the above-mentioned interferences give rise to a breach of Article 10 unless it can be shown that they were “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and were “necessary in a democratic society” to attain them.
1) “Prescribed by law”
(...) 46. The Court notes that the impugned Regulations were designed to lay down a framework of rules restricting the participation of a substantial number of local government officers within the categories defined in the parent legislation in certain kinds of political activities which might impair the duty of impartiality which they owed to their local authorities. It is inevitable that conduct which may call into question an officer’s impartiality in the eyes of third parties cannot be defined with absolute precision. For this reason, paragraphs 6 and 7 of the Schedule to the Regulations define types of conduct which have the potential to undermine an officer’s impartiality. Even accepting that it may be difficult on occasions for an officer to assess whether a given action may or may not fall foul of the Regulations, it is nevertheless open to him or her to seek advice beforehand either from the employer or from the union or other source. It must also be stressed that the scope and application of paragraphs 6 and 7 of the Schedule, like the Regulations as a whole, have to be considered in the light of the vice which the parent legislation sought to avoid. To that end, regulation 4 (see paragraph 33 above) must be considered a helpful aid to gauging the acceptability of a particular course of action from the standpoint of paragraphs 6 and 7 of the Schedule to the Regulations.
47. As to the applicants’ contention that the decision to entrust the interpretation and implementation of the Regulations to each local government employer only serves to promote inconsistencies in the application of the restrictions, the Court notes that the applicants have not adduced any evidence to show that this has been the case. In any event, an officer who has been disciplined for having breached the Regulations could appeal to an industrial tribunal whose decisions over time would undoubtedly help to promote a harmonised approach to the interpretation of the Regulations.
48. Having regard to these considerations, the Court finds that the interferences were “prescribed by law”.
2) Legitimate aim
(...) 52. The Court does not accept the applicants’ argument that the protection of effective democracy can only be invoked as a justification for limitations on the rights guaranteed under Article 10 in circumstances where there is a threat to the stability of the constitutional or political order. To limit this notion to that context would be to overlook both the interests served by democratic institutions such as local authorities and the need to make provision to secure their proper functioning where this is considered necessary to safeguard those interests. The Court recalls in this respect that democracy is a fundamental feature of the European public order. That is apparent from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights (see, mutatis mutandis, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 21–22, § 45). For the Court this notion of effective political democracy is just as applicable to the local level as it is to the national level bearing in mind the extent of decision-making entrusted to local authorities and the proximity of the local electorate to the policies which their local politicians adopt. It also notes in this respect that the Preamble to the Council of Europe’s European Charter of Local Self-Government (European Treaty Series no. 122) proclaims that “local authorities are one of the main foundations of any democratic regime”.
53. The Court observes that the local government system of the respondent State has long rested on a bond of trust between elected members and a permanent corps of local government officers who both advise them on policy and assume responsibility for the implementation of the policies adopted. That relationship of trust stems from the right of council members to expect that they are being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members’ own advisers; it is also to be noted that members of the public are equally entitled to expect that in their own dealings with local government departments they will be advised by politically neutral officers who are detached from the political fray.
The aim pursued by the Regulations was to underpin that tradition and to ensure that the effectiveness of the system of local political democracy was not diminished through the corrosion of the political neutrality of certain categories of officers.
54. For the above reasons, the Court concludes that the interferences which resulted from the application of the Regulations to the applicants pursued a legitimate aim within the meaning of paragraph 2 of Article 10, namely to protect the rights of others, council members and the electorate alike, to effective political democracy at the local level.
3) “Necessary in a democratic society”
(a) General principles
55. The Court recalls that in its above-mentioned Vogt judgment (pp. 25–26, § 52) it articulated as follows the basic principles laid down in its judgments concerning Article 10:
(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established.
(ii) The adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it is “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.
56. In the same judgment the Court declared that these principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention (p. 26, § 53)
(b) Application of the above principles to the instant case
(...) 61. The Court’s task is to ascertain in view of the above-mentioned principles (see paragraphs 55 and 56 above) whether the restrictions imposed on the applicants corresponded to a “pressing social need” and whether they were “proportionate” to the aim of protecting the rights of others to effective political democracy at the local level (see paragraph 54 above). In so doing it must also have regard to the fact that whenever the right to freedom of expression of public servants such as the applicants is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the authorities of the respondent State a certain margin of appreciation in determining whether the impugned interference is proportionate to the aim as stated (see, mutatis mutandis, the above-mentioned Vogt judgment, p. 26, § 53).
62. It is to be observed at the outset that the Widdicombe Committee reported back to the government at the time that it had found specific instances of abuse of power by certain local government officers. The Committee was concerned both about the impact which the increase in confrontational politics in local government affairs would have on the maintenance of the long-standing tradition of political neutrality of senior officers whose advice and guidance were relied on by the members elected to local councils as well as about the increased potential for more widespread abuse by senior officers of their key positions in a changed political context. Those concerns emerged from the Committee’s detailed analysis of the state of local government at the time and its wide-ranging rounds of consultations with interested parties (see paragraph 23 above). There was a consensus among those consulted on the need for action to strengthen the tradition of political neutrality either through legislation or modification of the terms and conditions of officers’ contracts of employment (see paragraphs 8–10 above).
In the Court’s view, the Widdicombe Committee had identified a pressing social need for action in this area. The adoption of the Regulations restricting the participation of certain categories of local government officers, distinguished by the sensitivity of their duties, in forms of political activity can be considered a valid response by the legislature to addressing that need and one which was within the respondent State’s margin of appreciation. It is to be observed in this regard that the organisation of local democracy and the arrangements for securing the functioning, funding and accountability of local authorities are matters which can vary from State to State having regard to national traditions. Such is no doubt also the case with respect to the regulation of the political activities of local government officers where these are perceived to present a risk to the effective operation of local democracy, especially so where, as in the respondent State, the system is historically based on the role of a permanent corps of politically neutral advisers, managers and arbitrators above factional politics and loyal to the council as a whole.
63. As to whether the aim of the legislature in enacting the Regulations was pursued with minimum impairment of the applicants’ rights under Article 10 the Court notes that the measures were directed at the need to preserve the impartiality of carefully defined categories of officers whose duties involve the provision of advice to a local authority council or to its operational committees or who represent the council in dealings with the media. In the Court’s view, the parent legislation has attempted to define the officers affected by the restrictions in as focused a manner as possible and to allow through the exemption procedure optimum opportunity for an officer in either the second or third categories to seek exemption from the restrictions which, by the nature of the duties performed, are presumed to attach to the post-holder (cf. the above-mentioned Vogt judgment, p. 28, § 59). It is to be observed also that the functions-based approach retained in the Regulations resulted in fewer officers being subject to restrictions than would have been the case had the measures been modelled on the Widdicombe Committee’s proposal to apply them to principal officers and above as a general class and irrespective of the duties performed (see paragraph 10 above).
It is also to be recalled that the requirement of political neutrality owed by the officers such as the applicants to the council members extends also to the members of the local electorate given that they have cast their votes to enable the political complexion of the council to reflect their view of what policies are best suited to their area (see paragraph 53 above). Hence, it is equally in their interests that officers with influence in the day-to-day running of local government business do not engage in activities which may be wrongly interpreted not only by council members but also by the public as impairing that process. For this reason, the restrictions imposed by the Schedule to the Regulations can reasonably constitute a justified response to the maintenance of the impartiality of officers such as the applicants.
It is also to be noted that paragraphs 6 and 7 of the Schedule to the Regulations were not designed to silence all comment on political matters, whether controversial or not. The Court reiterates in this respect that the vice which they are intended to avoid is comment of a partisan nature which judged reasonably can be considered as espousing or opposing a party political view (see paragraph 33 above). The same conclusion can be drawn in respect of the restrictions which are imposed on the activities of officers by reason of their membership of political parties. As with speech and writing of a partisan nature, paragraph 4 of Part I of the Schedule (see paragraph 33 above) is directed at precluding participation in only those types of activity which, on account of their visibility, would be likely to link a politically restricted post-holder in the eyes of the public or council members with a particular party political line. There is no restriction on the applicants’ rights to join a political party or to engage in activities within that party other than the limited restrictions identified by paragraph 4 of the Schedule.
For the Court, the reasons advanced by the respondent State to justify the restrictions contained in Parts I and II of the Schedule may be considered both relevant and sufficient. Further, those restrictions apply in such a way as to make an appropriate distinction between the duties and responsibilities which the applicants owed to their local authorities and the pursuit by them of their own personal activities (cf. the above-mentioned Vogt judgment, p. 28, § 59). The Court also notes in this context that the current government since coming to office have conducted a review of the restrictions introduced when they were in opposition. That review has shown that the maintenance in force of the restrictions continues to be justified (see paragraph 34 above).
64. Nor does the Court consider that the decision to apply the restrictions by means of modification of existing contracts or other legal relationships is fatal to their proportionality. In its view, the authorities of the respondent State cannot be accused of having infringed freedom of expression for avoiding a process of bargaining between the officers concerned and their employers over the introduction of the restrictions; nor can they be criticised for not confining the application of the restrictions to future appointees to politically restricted posts. In neither case would the goal of uniform application of the restrictions to all officers entrusted with similar duties be attained.
65. Having regard to the need which the Regulations sought to address and to the margin of appreciation which the respondent State enjoys in this area, the restrictions imposed on the applicants cannot be said to be a disproportionate interference with their rights under Article 10 of the Convention.
The Court concludes therefore that there has been no violation of Article 10 of the Convention by reason of the existence of the legislation and its impact on the applicants’ rights under that Article in the circumstances of this case.
II. Alleged violation of article 11 of the convention
66. The applicants submitted that the restrictions imposed by the Regulations on their holding of office and being active in political parties of which they are members seriously impeded the exercise of their rights to freedom of association in violation of Article 11 of the Convention. (...)
70. The Court notes that it has found the interferences with the applicants’ rights under Article 10 to be justified from the standpoint of the requirements of the second paragraph of that Article. Notwithstanding its autonomous role and particular sphere of application, Article 11 must in the present case also be considered in the light of Article 10 having regard to the fact that the freedom to hold opinions and to receive and impart information and ideas is one of the objectives of freedom of assembly and association as enshrined in Article 11 (see, mutatis mutandis, the above-mentioned Vogt judgment, p. 30, § 64).
In the Court’s view, the conclusions which it reached regarding the foreseeability of the impugned measures, the legitimacy of the aim pursued by them and their necessity hold true for the purposes of the requirements of the second paragraph of Article 11. It would also reiterate that paragraph 4 of the Schedule to the Regulations (see paragraphs 33 and 63 above) is limited to restricting the extent of the applicants’ participation in an administrative and representative capacity in a political party of which they are members. The Regulations do not restrict the applicants’ right to join any political party of their choosing.
71. The Court finds accordingly that there has been no violation of the applicants’ rights under Article 11 of the Convention.back