Freedom of Association in UK Law

When a person receives a custodial sentence he forfeits the freedom (and the right) to associate with whomever he wishes but he does not, in my view, thereby forfeit his right of association with all his fellow human beings. He does not, in other words, receive a sentence of solitary or cellular confinement. I accept that within the autonomous meaning afforded to “civil rights” by the European Court a right of association, in the sense I have described it, is a civil right.

By contrast, a peaceful protester does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration: Ziliberberg v Moldova and Ezelin v France (1991) 14 EHRR 362, 375, para 34 of the Commission's decision.

I find it impossible to say that a person in the position of LL is for practical purposes in prison. To describe him in such a way would be an extravagant metaphor. True, his freedom of movement, communication and association is greatly restricted compared with an ordinary person. But that is not the comparison which the law requires to be made. The question is rather whether he can be compared with someone in prison and in my opinion he cannot.

Some are so obvious that they would immediately be included in a list if anyone for one moment doubted their existence, for example, the right not to be subjected to physical or psychological assault or torture. In view of the axiomatic principle however the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody.

It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes.

I do not think this is now a legitimate approach, if it ever was. In my judgment the legislation should simply be construed in the normal way, without presumptions one way or the other. Indeed, as far as the 1992 Act is concerned, the starting point it that it should be given a "likely and workable construction", as Lord Bingham of Cornhill put it in P v National Association of Schoolmasters/ Union of Women Teachers [2003] ICR 386, para.7.

They were travelling in a convoy of motor vehicles and were stopped by a police cordon at a junction within several miles of four collieries. The inspector in charge of the operation had reason to believe that a breach of the peace would be committed if they continued to the pits and asked them to turn back. In the course of his judgment Skinner J (who was sitting with Otton J) said: