The Strasbourg cop-out
J. A. G. Griffith
The closed shop is a public convenience Which not everyone wishes to use. It is convenient because while it adds to the bargaining strength of the unions it also enables discipline to be exercised over the membership, which makes both bosses and union officials happier and brings the corporate state a little closer. If, on the Other hand, it was abolished, no doubt some employers would seek to exploit the resulting weakness of trade unions and industrial Conflict would be greater. Amongst its Inconveniences is the existence of those Who protest against being enclosed and who bring to mind the great anarchist cry: 'The Officer arrested me in the name of the law — SO I struck him in the name of liberty'. The situation is exacerbated whenever the law permits a trade union to exercise uncontrolled powers to accept or reject an individual's application for membership or to expel him from the union. And these Powers can be used — as can employers' Powers of dismissal — for unfair, personal, even spiteful reasons. As we have recently been reminded, there are shits everywhere.
Obviously behind the closed shop argument lies a larger issue. Whatever individual or corporate employers may think, however much they may be concerned with high productivity, industrial or commercial success, personal satisfaction or whatever — for the gaining of which ends (which will also often redound to the advantage of Workers) they will happily accept closed Shops, open shops, post-entry shops and Pre-entry shops, agency shops or, for that matter, fish and chip shops — politicians have other ideas. Some of these on the Conservative side, especially those who represent the shire counties and do not oyer-frequently come face to face with either the captains or the private soldiers of industry, still regard trade unions as organisations of trouble-makers and collective bargaining as a form of criminal conspiracy. On the Labour side there are those who are syndicalists at heart and believe that the subscription of private capital from whatev er source — including pension funds — is a form of entryism and that trade union activity, however militant, is a kind of compromise. And between these two groups there are various positions taken up by various politicians.
Only the existence of this subterranean conflict can explain the passion which has been shown over the decision of the European Court of Human Rights in the case of Young, James and Webster. These three were former employees of British Rail and in 1975 a closed shop agreement was concluded between British Rail and trade unions whereby membership of one of the unions was to be a condition of employment. The three refused to satisfy this condition and British Rail dismissed them. They alleged that this treatment violated Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression), and 11 (freedom of association with others) of the European Convention.
It was this last article that primarily concerned the Court. Article 11 provides: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security, or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exerciseof these rights by members of the armed forces, of the police or of the administration of the State. The judgment of the Court records that a substantial part of the pleadings was devoted to the question whether Article 11 guaranteed not only freedom of association but also, by implication, a 'negative right' not to be compelled to join an association or a union. The attention of the Court was drawn to the fact that the travaux preparatoires which preceded the drafting of the Convention showed that it was considered undesirable to introduce into the Convention a rule under which no one might be compelled to belong to an association, 'on account of the difficulties raised by the closed-shop system in certain countries'.
The Court decided not to answer the question of the negative right in that form (and therefore not to review the closed shop system) but said that even if such a general rule was deliberately omitted from the Convention 'it does not follow that the negative aspect of a person's freedom of association falls completely outside the ambit of Article 11'.
Membership of a union, in the cases before the Court, entailed support for the objects of the union which included expressly political objects to which two of the three individuals objected. All three considered the membership condition to be an interference with freedom of association. In the Court's opinion, a threat of dismissal was a form of compulsion which struck at the substance of the freedom guaranteed by Article 11, and so there had been an interference with that freedom and a violation of the Convention.
The logic of this escapes me, and the whole argument looks like a whopping cop-out as a result of which the Court arrived at the conclusion it wished to arrive at without declaring closed shops contrary to the Convention. There are many rights not included in the Convention, and one of them is the right not to be threatened with unpleasant consequences if you do not join an association. And once the notion of negative rights is introduced, can it be applied to all the other Articles and with what result?
Whether Government will consider that any legislation is required to bring English law into conformity with the decision is doubtful. The Employment Act 1980 now provides protection for individuals against dismissal for non-union membership in a closed shop where the employee 'genuinely objects on grounds of conscience or other deeply-held conviction to being a member of any trade union whatsoever or of a particular trade union'.
In the old days — which for the present purposes means before the Industrial Relations Act 1971 declared some closed shop agreements void and provided a right for employees not to belong to a union — closed shops often had trap doors through which 'non-conformists' were allowed to escape while officials looked the other way. The decision of the European Court of Human Rights in the case of Young, James and Webster is most unlikely to result in further rights being given to non-conformists, but it may encourage a little more flexibility and it may make it more difficult for the next Labour government to repeal those parts of the Employment Act 1980.
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