CASE OF AHMED AND OTHERS v. THE UNITED KINGDOM
No violation of Art. 10;No violation of Art. 11;No violation of P1-3
C. Russo;John Freeland;R. Pekkanen
7. Mr Mobin Ahmed, Mr Dennis Perrin, Mr Ray Bentley and Mr David Brough are all British citizens, born in 1941, 1948, 1947 and 1932 respectively. They live in London, Yelverton, Edgware and Exeter respectively. At the relevant time they were each permanently employed in different capacities by various local authorities. Their precise status and functions are described in Section C below. The background to their complaints to the Convention institutions is constituted by the enactment and implementation of legislative measures designed to limit the involvement of certain categories of local government officials, such as themselves, in political activities. The history of the enactment of the relevant measures as well as their purport and scope are described in Section B below. The impact of the measures on the applicants, all persons considered holders of politically restricted posts within the meaning of the applicable legislation, is described in Section C below. 8. Against the background of the increasing politicisation of local government and attendant problems in respect of the relationship between elected members and local government officers, the Secretaries of State for the Environment, for Scotland and for Wales, appointed on 5 February 1985 a committee (“the Widdicombe Committee”) to inquire, inter alia, into the respective roles of elected members and officers of local government authorities and to make any necessary recommendations for strengthening the democratic process. 9. On 9 May 1986, after receiving evidence from 138 local government authorities and over 500 other organisations and individuals, the Widdicombe Committee submitted its report. The Committee firmly endorsed the continuation of the tradition of politically impartial local government officers having regard in particular to the roles of senior officers as managers, advisers and arbitrators in the day-to-day functioning of local government. In his foreword to the final report the Chairman of the Committee wrote: “6. Although most of the problems we have perceived have been ones of uncertain relations, there have been some cases, albeit a few, where power has been abused.” In the Chairman’s view, the recent sharpening of the political intensity of local politics was reflected in the relations between elected council members and local government officers and that the trend towards greater politicisation might be a source of future problems unless recommendations were made in order to provide a framework able to cope with it. With regard to the importance of the impartiality of local government officers, the Widdicombe Committee concluded that: “6.141. The overwhelming view in the evidence we have received has been that officers (subject to very limited and closely defined exceptions) should continue to serve the council as a whole. … There has been equally wide agreement that the public service tradition of a permanent corps of politically impartial officers should be retained. … 6.180. Public service in the United Kingdom is founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control. … 6.182. Local government in the United Kingdom has traditionally been based on the same public service tradition as central government, but this has been a matter of convention and practice. … 6.186. The issue of principle is therefore straightforward. There must continue to be a system of permanent and politically neutral officers appointed on the basis of merit. The issue which we need to consider is whether new machinery or rules are required to ensure this, and if so on what basis.” 10. To ensure that senior officers continued to discharge their functions in a manner which was impartial from both a subjective and an objective point of view, the Widdicombe Committee in paragraph 6.217 of its report recommended that: “(a) the legislation should be amended so that persons who are councillors or who are standing for election as councillors, or who have been councillors within the last year, may not be employed by another authority at the rank of principal officer or above; (b) the Local Authorities’ Conditions of Service Advisory Board should take steps to include in the terms and conditions of officers at the rank of principal officer and above a prohibition on political activity, including: (i) standing for, and holding, public elected office; (ii) holding office in a political party; (iii) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate; and (iv) canvassing at elections; (c) if the changes recommended at (b) are not made to officers’ terms and conditions, legislation should be introduced to similar effect.” 11. Following the publication of the recommendations of the Widdicombe Committee, on 16 November 1989 the House of Commons passed the Local Government and Housing Act 1989 (“the Act”), which empowered the Secretary of State for the Environment to make regulations to restrict the political activities of certain categories of local government officers. The Act entered into force on 29 November 1989. 12. The Local Government Officers (Political Restrictions) Regulations 1990 (“the Regulations”) were made under section 1(5) of the Act on 4 April 1990. They were laid before Parliament the following day and came into force on 1 May 1990. The Regulations applied to all persons holding a politically restricted post as defined in section 2(1) of the Act. This term covers three broad categories of local government officials: the most senior post-holders in local government (category one); officials remunerated in excess of a prescribed level and whose posts are listed for the purposes of the application of the Regulations (category two); and officials paid less than the prescribed level but who hold a listed post (category three). Each local authority was obliged to draw up a list of posts falling within the second and third categories (section 2(2)). A local government officer in the second and third categories could apply to an independent adjudicator to have his or her post removed from the list of posts to which the Regulations applied (section 3). All local government officials employed in these categories at the time of the entry into force of the Regulations were deemed, according to regulation 3(1), to be subject to the measures. A more detailed analysis of the contents of the Act and the Regulations is set out at paragraphs 26–33 below. 13. The first applicant, Mr Ahmed, was a solicitor employed by the London Borough of Hackney. Although his salary fell below the level prescribed in section 2(2)(a) of the Act (see paragraphs 12 above and especially 30 below), making him a category three officer, the Council pursuant to section 2(2)(c) of the Act included his post in the list of politically restricted posts because, in its opinion, his post involved giving advice on a regular basis to committees of the Council, namely the Housing Benefits Review Board, the Housing Development Sub-Committee and the Environmental Sub-Committee (see paragraph 30 below). 14. Mr Ahmed was adopted as Labour candidate for election to the London Borough of Enfield in 1990, but was obliged to withdraw his candidature as a result of the Regulations. On 7 March 1990 he applied for removal of his job description from the list of politically restricted posts (see paragraphs 12 above and especially 32 below). The Council confirmed that Mr Ahmed had not attended committees during the previous twelve months, but stated that he would be involved in giving advice to committees in future, and would attend on a more regular basis. The Council did not provide therefore a certificate stating that he did not give advice regularly. The adjudicator replied to the Council on 30 March 1990 that Mr Ahmed’s application for exemption could not therefore be granted. 15. Prior to his retirement, the second applicant, Mr Perrin, was Principal Valuer with the Devon County Council (a category three officer). He was responsible for leading, directing and developing the Council’s area valuation staff. His post required him to give regular advice to the Council’s committees, including strategy advice on key estate management issues, and to speak to the media. Accordingly his post was included in the list of politically restricted posts kept by the Council in accordance with section 2(2) of the Act (see paragraph 12 above and especially paragraph 31 below). 16. On 19 February 1990 Mr Perrin applied for exemption from political restrictions on the ground that although he advised the Council at meetings and spoke to the media, the advice was “factual valuation information regarding the acquisition, disposal and management of property”. His application for exemption was refused on 20 March 1990. The adjudicator wrote: “I am satisfied that the duties of your post do fall within section 2(3) of the Act in that you do regularly attend committee meetings of the authority to give advice. Your authority do state that this advice does not extend to ‘policy advice’, but the Act itself makes no distinction between types of advice. I am not prepared, therefore, to grant an exemption under section 3(4) of the Act.” 17. As a result of the Regulations, Mr Perrin had to give up his position as Vice-Chair and Property Officer of the Exeter Constituency Labour Party, and had to refrain from supporting and assisting Labour candidates in Exeter City Council elections, including his wife, who was a candidate in May 1990 and May 1991. He also reduced his involvement in trade union activities. 18. The third applicant, Mr Bentley, is a planning manager with Plymouth City Council. He resigned from his position as Chairman of Torridge and West Devon Constituency Labour Party because of the Regulations, and was also restricted in canvassing for his wife who stood as the only Labour Councillor for the West Devon Borough Council, and in giving radio interviews in his capacity as Chairman of the Plymouth Health Emergency, a body concerned with National Health policies. 19. The monitoring officer of the Council classified Mr Bentley’s post as one that was politically sensitive (a category one post) and appropriately subject to political restrictions under section 2(3) of the Act (see paragraph 30 below). The reasons for the classification included that Mr Bentley was head of the Council’s corporate policy unit, that he was responsible directly to the head of the Council’s paid service, that his post was responsible for policy analysis and research, that he represented the Council on a transport steering group involving other authorities and organisations, and that, in the twelve months prior to 31 August 1990, he attended three meetings of the Council’s Policy and Resources (Finance sub-) Committee and advised on four separate issues of public transport. The monitoring officer considered that Mr Bentley’s post also fell within section 2(7)(a) and (b) of the Act, and was therefore politically restricted in any event (see paragraph 28 below). 20. Mr Bentley applied for exemption from political restrictions. On 19 November 1990 the adjudicator underlined that he regarded his duties as limited to considering applications concerning restrictions under section 2(2) of the Act. He stated that although the Council may have identified the post as being politically restricted, it was not “politically restricted because of that fact, but because it is explicitly covered by section 2(1)(c) of the Act. I therefore do not consider it necessary or desirable to address the question of whether this post meets the criteria for inclusion in the list of posts under section 2(2) or for exemption from that list, unless or until it is established that the post is not covered by section 2(1)(c).” 21. The fourth applicant, Mr Brough, is employed by the Hillingdon Borough Council as the head of its Committee Services Department (a category one post). The provision of services to the Council’s committees necessarily involves the Committee Services Department in frequent contact with and giving advice to the elected members of the Council. Mr Brough was the officer responsible for those activities. 22. As a consequence of the Regulations, Mr Brough can no longer act as Parliamentary Chairman of his party in Harrow East and is prevented from speaking at public meetings on issues such as housing and the health service. Mr Brough did not apply for exemption from the scope of the Regulations. 23. The applicants and NALGO (the predecessor of UNISON, the trade union of which the applicants are members and which represents public-sector workers) applied for and were granted leave to apply for judicial review of the Regulations. The application was dismissed on 20 December 1991. The judge, Mr Justice Hutchison, considered that he was bound by the recent decision of the House of Lords in the case of R. v. Secretary of State for the Home Department, ex parte Brind and Others regarding the status of Article 10 of the Convention in domestic law. In connection with the test of “Wednesbury” unreasonableness, the judge referred to an affidavit submitted by Mr Simcock, a senior civil servant at the Department of the Environment, in which Mr Simcock explained how the Widdicombe Committee (see paragraph 8 above) had been set up in 1985 to inquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers. Mr Simcock also described the consultation process between the publication of the Widdicombe Report and the making of the Regulations, in which NALGO was involved, and how the Regulations were in some respects less restrictive than the Widdicombe Committee’s proposals. Referring to senior officers, the Widdicombe Committee had said: “... It is part of their job to advise councillors, and to adjudicate on matters of propriety, and in so doing they must command the respect and trust of all political parties. There might well be some senior officers who are politically active but who are nevertheless totally able to detach themselves from such activity in carrying out their duties as neutral officers. Nevertheless we believe there will always be a very significant risk that they are viewed with suspicion by councillors of other parties, and that as a consequence the performance of their duties towards the council as a whole will be impaired.” The judge continued: “... I preface my summary by pointing out that some of [the applicants’ complaints] reflect the applicants’ root and branch opposition to the whole concept of restricting the political activities of local government employees. It is said that: There was no pressing social need for the Regulations – local government employees have in the past provided impartial advice and there is public confidence in their ability to do so. The definition of [persons holding politically restricted posts] is unduly wide – a much more restricted category would have served the government’s purpose. The restrictions are expressed in broad, subjective and uncertain terms – a vice particularly objectionable where, as here, they seek to restrict fundamental human rights. Thus, in the Schedule references to apparent intention (paragraphs 6 and 7) and to publication in circumstances likely to create an impression (paragraphs 9 and 10) are objectionable, as is paragraph 4 of the Regulations themselves. The consequence of the vice mentioned in the previous paragraph is that employees are likely to be treated inconsistently by different employers, by reason of there being room for undue latitude in interpreting the restrictions. The Regulations go too far in prohibiting conduct undertaken with apparent intention, etc., or likely to create the impression of support, etc. They should, at most, have proscribed actual political activities. The width of the language used means that many non-party political activities, including trade unions and charitable activities, are prohibited. The terms are imposed on existing employees, who entered into their contracts of employment on a different basis. The restrictions may have an adverse effect on recruitment and lead to resignations by skilled staff. Some of these points will have to be considered individually when I come to deal with further arguments advanced by the applicants under quite different heads, but in the context of Wednesbury unreasonableness I propose only to say that they do not in my judgment come near to establishing a case of perversity. I have already briefly referred to the genesis of the Act and the Regulations in the Widdicombe Report, and to the consultative processes that followed it. Paragraph 51 of the Report contained the recommendation that: ‘... terms and conditions of [persons holding politically restricted posts] [should include] a prohibition on political activity, including ... (iii) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate;’ The Government’s Command Paper in July 1988 (in which, as already mentioned, the view was expressed that the categories of [persons holding politically restricted posts] should be more restricted than the Report proposed) spelt out the essential aim that: ‘it was important that the post-holder should be seen to be politically impartial but that otherwise, local government employees should not be subject to restrictions on their political activity.’ Of the specific arguments mentioned in (a) to (h) above, those in (a), (b), (e), (g) and (h) are, it seems to me, essentially arguments against the whole concept of restricting such activities, and in the circumstances cannot found an attack on Wednesbury grounds. The arguments summarised in (c) and (d) are to the effect that the Regulations are uncertain and incapable of consistent and fair application. As a Wednesbury argument, this contention could not avail the applicants – at least unless the Regulations were void for uncertainty (this would be a distinct ground for challenge) which plainly they are not. Finally, the argument mentioned in (f) is in my view misconceived: the Regulations do not prohibit the kind of activities there mentioned. I shall have more to say on this subject when I deal with the applicants’ specific arguments on vires and legitimate expectation, to the first of which I now turn.” In conclusion, the judge found that the Regulations did not go beyond the policy and purpose of the Act, and rejected an argument that the applicants had a “legitimate expectation” that the Government would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters. 24. An appeal to the Court of Appeal was dismissed on 26 November 1992. Lord Justice Neill found that the provisions of Article 10 of the Convention did not assist NALGO and the applicants, confirmed that it was not open to the courts below the House of Lords to depart from the traditional Wednesbury grounds in reviewing the decision of a minister who has exercised a discretion vested in him by Parliament, and found that the Regulations were not “Wednesbury unreasonable” or ultra vires. He also agreed with the first-instance judge as to legitimate expectation. The other judges, Lords Justices Russell and Rose, agreed. Leave to appeal to the House of Lords was refused. 25. The House of Lords refused leave to appeal to it on 24 March 1993. 26. Section 1(5) of the Act provides: “The terms of appointment or conditions of employment of every person holding a politically restricted post under a local authority (including persons appointed to such posts before the coming into force of this section) shall be deemed to incorporate such requirements for restricting his political activities as may be prescribed for the purposes of this subsection by regulations made by the Secretary of State.” 27. The term “persons holding a politically restricted post” is defined by section 2(1) of the Act. It consists of three broad categories of local government officer (excluding headmasters and teachers, who are exempt from the operation of the Regulations by reason of section 2(10) of the Act). 28. The first category consists of officers who hold certain posts specified in section 2(1)(a) to (f) of the Act, namely the head of the authority’s paid service (section 2(1)(a)); the chief officers (section 2(1)(b) and (c)); the deputy chief officers (section 2(1)(d)); the monitoring officer (section 2(1)(e)); and assistants for political groups (section 2(1)(f)). There are an estimated 12,000 officers in this category according to the Government’s memorial. The chief officers are the heads of the various departments within the local authority’s administration. They consist of “statutory” and “non-statutory” chief officers. These terms are defined in section 2(6) and (7) of the Act respectively. The “statutory” chief officers are the chief education officer, the chief officer of the fire brigade, the director of social services or director of social work, and the chief financial officer. A “non-statutory” chief officer is defined as, inter alia, a person for whom the head of the authority’s paid service is responsible (section 2(7)(a)), or a person who, largely or exclusively, reports directly to or is directly accountable to the head of the authority’s paid service (section 2(7)(b)). A “deputy” chief officer is a person who, as regards all or most of the duties of his or her post, is required to report directly or is directly accountable to one or more of the statutory or non-statutory chief officers (section 2(8)). By section 2(9), purely secretarial or clerical staff are not non-statutory chief officers or deputy chief officers. 29. The second category consists of those local government officers whose annual rate of remuneration exceeds the level specified in section 2(2)(a) and (b) of the Act (“the prescribed level”, which is currently 25,746 pounds sterling per annum or pro rata for part-time posts) and whose posts have not been exempted from the operation of the Regulations. The Government estimate that there are approximately 28,000 officers whose salary exceeded the prescribed level. However, in their view, the number of officers who were actually subject to the Regulations is considerably less than 28,000 since a significant number had either been granted an exemption or would have been entitled to one had they applied. 30. The third category (defined by section 2(2) (c) of the Act) consists of those local government officers whose annual rate of remuneration is less than the prescribed level but whose duties consist in or involve one or both of the duties identified in section 2(3), namely: “(a) giving advice on a regular basis to the authority themselves, to any committee or sub-committee of the authority or to any joint committee on which the authority are represented; (b) speaking on behalf of the authority on a regular basis to journalists or broadcasters.” According to the Government’s memorial, there are an estimated 7,000 officers in this category. 31. Each authority is obliged to prepare a list of persons falling within the second and third categories (section 2(2)). Any officer whose post is included on this list is entitled to be removed from the list on the grounds that his or her duties do not include duties of the kind set out in section 2(3). 32. Section 3 of the Act provides for the appointment of a person to consider applications for exemption from political restriction. If the person appointed (who is called the adjudicator) finds that the duties of a listed post (that is, those posts falling within the second and third categories) do not fall within section 2(3), he or she is required to direct that the post is not to be regarded as a politically restricted post. The authority must then remove the post from the list maintained under section 2(2). According to the Government, as at January 1997, 1,374 applications had been made for exemption of which 1,176 have been granted. 33. The Schedule (Part I) to the Regulations prohibits the participation of persons holding politically restricted posts (including persons appointed to such posts before the coming into force of the Regulations) in elections for the House of Commons, the European Parliament or any local authority either as a candidate (paragraph 1), an election agent (paragraph 3) or a canvasser (paragraph 5). It does not prohibit membership of a political party, but does prohibit the holding of an office within a political party if that would involve participating in the general management of that party or one of its branches (paragraph 4(a)) or representing the party in dealing with others (paragraph 4(b)). Speaking to the public or to a section of the public or publishing any written or artistic work with “the apparent intention of affecting public support for a political party” is also prohibited by paragraphs 6 and 7 of Part II of the Schedule. Under paragraph 8, nothing in paragraphs 6 and 7 shall be construed as precluding the appointee to a politically restricted post from engaging in the activities mentioned in those two paragraphs to such an extent as is necessary for the proper performance of his duties. In accordance with regulation 4 when determining whether a person has breached the terms and conditions set out in paragraphs 6 and 7 regard shall be had to: “(a) whether the appointee referred to a political party or to persons identified with a political party, or whether anything said by him or the relevant work promotes or opposes a point of view identifiable as the view of one political party and not of another; and (b) where the appointee spoke or the work was published as part of a campaign, the effect which the campaign appears to be designed to achieve.” 34. The Government informed the Court in their memorial that a review was then being conducted of the detail of the legislation governing political restrictions on local government officers. The aim of the review was to ensure that the detail of the restrictions imposed was essential for the maintenance of political impartiality of senior local government officials. At the hearing the Government informed the Court that the review had shown that the maintenance in force of the restrictions set out in the Regulations continued to be justified.