Constitutional Protection And The European Convention On Human Rights—An Irish Joke?
| Author | Anne Staines |
| Published date | 01 March 1981 |
| Date | 01 March 1981 |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb02743.x |
CONSTITUTIONAL PROTECTION AND THE
EUROPEAN CONVENTION ON
HUMAN RIGHTS-AN IRISH JOKE?
INTRODUCTION
THE
European Convention on Human Rights, in addition to its
significant contribution to International Law, has proved a very
relevant factor in United Kingdom municipal law, especially in
relation to the
“
Bill
of
Rights
”
controversy. There have been
many, recently, to argue that we are now in need of an entrenched
written Constitution to define and guarantee
our
fundamental
liberties in the face
of
increased legislation and administration; and
one argument frequently heard in this context is that incorporation
of the European Convention into
our
municipal law could satisfy
that need. Against this it is argued that
our
unwritten Constitution
remains adequate, so that the question of an entrenched Bill of
Rights does not arise; and that in any case the European Conven-
tion presents insuperable difficulties of incorporation, even if such
a need were recognised.
At the root of the controversy, however, there seems to be one
question which has never been satisfactorily answered: is the Con-
vention
a
suitable model upon which to base the protection of
our
constitutional rights? How, for example, does it stand in relation to
the problems which
our
Constitution faces today?
It is proposed in this article to approach this question by examin-
ing the working of the Convention in one particular area which has
for years proved a legislative and constitutional thorn-in-the-flesh.
It has become almost a political convention in this decade that
a change in Government will result in changed legislation concern-
ing the closed shop. Its abolition by the 1971 Industrial Relations
Act was one of the factors which led to the fall of the Conservative
Government; the repeal
of
that Act in the 1974 Trade Union and
Labour Relations Act ultimately had the effect that where a closed
shop was in operation, one only had
a
good reason for refusing to
unionise if that reason was religious in character,’ a position which
the present Conservative Government vowed to amend.2
It is not proposed to speculate here upon the possible effects of
1
Employment Protection (Consolidation) Act
1978,
s.
58
(3).
The original pro-
visions in the
1974
Trade Union and Labour Relations Act
1974
exempted employees
who genuinely objected “on grounds
of
religious belief to being
a
member
of
any
trade union whatsoever
or
on any reasonable grounds
to
being
a
member
of
a
particular trade union.” (Sched.
1,
para.
6
(5)
).
The
“
reasonable grounds
”
reference
was deleted by the Amendment Act of
1976.
The definition
of
religious objection
is personal,
so
that it is the individual, and not the religious community to which
he belongs, who must object to union membership on religious grounds,
Goodbody
v.
B.R.B.
[1977]
I.R.L.R.
84;
Saggers
v.
B.R.B.
[19781
2
All E.R.
20.
By means
of
the Employment Act
1980.
149
150
THE MODERN
LAW
REVIEW
[Vol.
44
the new provisions, nor to enter into the controversy surrounding
the rights and wrongs of the closed shop; those arguments are out-
side the scope of this article. But that the closed shop can present
in certain circumstances, a threat to individual liberties
is
beyond
doubt; and in view of the recent decision of the European Com-
mission in the British Rail casesY3 it is submitted that it has become
very relevant to ask how a constitution
on
the lines of the European
Convention
would
cope with this problem.
I
Article 11 (i) of the Convention provides that:
“
Everyone has the
right to freedom
of
peaceful assembly and to freedom of association
with others, I’ncluding the right to form and to join trode unions for
the protection of his interesfs.”
It was the original intention of the
Council of Europe that the European Convention should include
all “the rights and fundamental freedoms referred to in the
Uni-
versal Declaration.” Article 11
is
a good example of the com-
promises
in
drafting to which the Convention was subject, its scope
soon
being restricted by the Committee
on
Legal and Administra-
tive Questions
“
for the moment to only those essential rights and
fundamental freedoms.
. .
which are, today, defined and accepted
after long usage, by the democratic regimes
”
5;
included was the
right of:
“
Freedom of Association in accordance with Article
20
(paras.
“Freedom to unite in trade unions
in
accordance with para.
4
The UN Declaration defined the right of freedom of association
in Article
20
as including the right not to associate: Article
20
(2)
providing that:
“NO
one may be compelled to belong to an
association.”
The final draft of Article 11 construes the right of freedom
of
assembly with that of association, including within the latter the
provisions of Articles
20
(1) and
23
(4)
of the Universal Declara-
tion. A significant omission
is
that of freedom from compulsory
association, provided by Article
20
(2)
of the Universal Declaration
and included in the Doc. 108 Recommendation. The Committee
of Experts had emphasised that freedom of association included the
right
to
form trade unions, and thus far the Senior Officials agreed;
but
on
account
of
the difficulties raised by the
“
closed shop
”
system
in many countries, the officials considered it undesirable to intro-
duce into the Convention an express rule under which
“no
one
may be compelled to belong to an association
”
such as Article
20
(2)
of the Universal Declaration embodied. It remains to be seen how
1 and
2)
of the
U.N.
Declaration
”;
and:
of Article
23
of the
U.N.
Declaration.”
3
Applications
7601
/76,
7806/77.
4
REC. 38,
September 9, 1949.
5
Consultative Assembly,
Doc.
77,
September
5,
1949,
para.
4.
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