C O U N C I L OF E U R O P E EUROPEAN COMMiSSION OF HUMAN RIGHTS DEOgJON OF THE COMMISSION AS TO THE ADMISSIBILITY Application No. 9444/81 by Albert STYTH against United Kingdom The European Commission of Human Rights sitting in private on 9 July 1983 MM. C. A. N0RGAARD, President G. SPERDUTI J. A. FROWEIN F. ERMACORA J. E. S. FAWCETT M. A. TRIANTAFYLLIDES T. OPSAHL G. JORUNDSSON G. TENEKIDES S. TRECHSEL B. KIERNAN M. MELCHIOR J. SAMPAIO , J. A. CARRILLO A. S. GOZUBUYUK A. WEITZEL J. C. SOYER H. G. SCHERMERS H. DANELIUS Mr.H. C. KRUGER, Secretary to the Commission Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 12 May 1980 by Albert STYTH against the United Kingdom and registered on 15 May 1981 under file No 9444/81; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Conmiission; Having deliberated; Decides as follows: - 2 THE FACTS The facts of the case, as submitted by the applicant and supported by accompanying documents, may be summarised as follows: The applicant is a United Kingdom national, born in 1922 and residing in Carlisle. He is an engine driver who has been working for British Railways (BR) for more than 30 years. He is a member of the relevant Union, the Associated Society of Locomotive Engineers and Firemen (ASLEF) which is one of the major trade unions officially recognised by BR, with whom they have entered into employment agreements. Due to the closure in 1978 of one BR depot and the thus resulting number of redundant railwajmien, more workers were transferred to the applicant's depot by his employer BR, who then required him to take up a different kind of work than the one he was originally employed to do. He was to be sent on another railway route requiring re-training and deterioration of his terms of employment (loss of £20 weekly and lowering of his pension rights) allegedly in breach of an agreement between BR and ASLEF, providing that in similar cases existing terms of employment should be respected (clause 9 of the Promotion, Transfer and Redundancy Standard Arrangements, 1969). On 2 March 1979 the applicant forwarded to his Union an "individual rights claim form", stating his complaint about the altered terms of employment offered to him by BR and his intention to proceed with an action before an Industrial Tribunal, according to the Employment Protection (Consolidation) Act 1978, specifying at the same time that he had not applied, as yet, to the Tribunal and asking for (legal) advice and representation before it by ASLEF. In their reply of 22 March 1979, ASLEF informed the applicant through his branch secretary that due to the fact that similar problems were dealt with on a management-union level they felt unable to support his application to an Industrial Tribunal. Following his refusal to be re-trained for the new status of employment offered to him, the applicant was informed by his branch manager on 20 July and subsequently on 20 August 1979 that he had been posted according to the present standard of his knowledge. He was in fact confined to a shunting link with effect from 23 July 1979. - 3 As his union did not object to this reposting, the applicant, with the backing of the members of his union branch, tried to complain of the union's attitude which he alleged amounted to a concerted action with his employers to his detriment. However, the numerous letters which the applicant wrote to various union officials either remained without reply, or were answered in an evasive manner. Some were not even forwarded to their addressees by the union's branch secretary. The position of the union's Head Office was summarised in a letter to the applicant's MP, Mr Whitelaw, of 3 June 1979, in the following terms: "For your information there is no agreement between the Railway Trades Unions and the British Railways Board which guarantees an individual employee the right to maintain his average earnings ... the Employment Protection (Consolidation) Act 1978 does not provide for the setting up of a Tribunal to rule on such an aspect as Mr Styth is claiming". A further letter to the applicant's branch secretary of 9 July 1980 stated inter alia the following: "... we have to advise you, that after giving consideration to the contents of all correspondence, that we have examined the relevant acts as quoted by Mr Styth, and we have set out, for your information, the Emplojnnent Protection (Consolidation) Act, 1978. As you will see from the contents of the act [summary note annexed] there is nothing to guarantee employees to maintain the level of earnings above the basic rate of pay ... The work allocation of depots and the establishments are covered in the Machinery of Negotiations in Part 1, para. 4 and Part 2, para. 17. These paras, also deal with link structure and placing of men within links. Neither this office nor the Society's Executive Committee become involved within these areas. Executive Committee Resolution 185/279 [i.e. the resolution which had dealt with the closing of the depot concerned, and the transfer of redundant staff to the applicant's depot] ... did not instruct, nor did it advise on either the link structure, or the placing of staff within the links." - 4 The applicant also turned unsuccessfully to a number of other private and State agencies. The TUC informed him that he should pursue the matter through his own union (letter of 11 December 1978). The Commission for Local Administration in England (Ombudsman) declared itself not competent (letter of 15 September 1980), and so did the Advisory, Conciliation and Arbitration Service (ACAS letter of 23 September 1980) pointing out that their function was to help unions and employers to reach agreement where disputes occur and where both sides are willing to accept ACAS intervention. Since the applicant's union and British Rail seemed to have reached agreement on redundancy there was no likelihood of their being asked to become involved. ACAS was not able to help the applicant in the other matter which he had raised, since it concerned internal union rules. The Lord Chancellor's Office, finally, informed the applicant that neither the Lord Chancellor nor any other Minister could intervene in an individual case or give private legal advice. If the applicant considered that he might have a remedy at law, it was recommended to him to seek the advice of a solicitor. He was warned that this might involve certain costs (letters of 22 April and 25 November 1980). The applicant in fact turned to a solicitor's firm (Messrs. Burnett, Carlisle) asking them about the possibility of obtaining legal aid. In view of the total amount of the applicant's and his wife's income the answer was in the negative. The applicant also tried to solicit the assistance of the NCCL, but was told that the matter was outside their scope of activities (letter of 27 October 1980). The applicant did not take the case before an Industrial Tribunal at his own expense, nor did he apply for the grant of free legal aid for this purpose. COMPLAINTS The applicant invokes his rights under Art. 6(1) of the Convention which he claims have been violated by the fact that he was unable to obtain a fair hearing of his allegations by a judicial body. He alleges that he had no other means of bringing an appliction before the Industrial Tribunal but through the union machinery. His union, however, persistently refused to represent him or to provide him with the necessary legal aid. He considers the Government to be in breach of the Convention by allowing such a situation to exist. The applicant also claims that his rights under Art. 11 of the Convention have not been observed in that his union abused to his detriment the power conferred upon it by a law which was passed by the respondent Government. THE LAW 1. The applicant complains in essence that he was prevented from effective access to court as guaranteed by Art. 6(1) of the Convention (cf. ECHR, Colder judgment. Series A, N° 18). In his submission this was due to the unjustified refusal of his trade union to provide him with the required legal aid for the purpose of bringing an action for breach of his emplojnnent contract before an Industrial Tribunal. 2. Insofar as the application is directed against the acts of the trade union concerned, it is ratione personae incompatible with the provisions of the Convention (Art. 27 (2)) of the Convention) since the Commission can only receive applications complaining of acts of organs of the High Contracting Parties (Art. 25). A trade union clearly is no State organ whose acts or omissions could as such entail any responsibility under the Convention for the High Contracting Party concerned. 3. The applicant in the present case does not allege that a court remedy by which he could assert his above claim of breach of contract by his employer did not exist in the English legal system. He only alleges that he was prevented from making effective use of such remedy as existed by being refused or practically unable to obtain legal aid for this purpose. In this respect the Commission recalls that unlike the stiuation concerning criminal proceedings (cf. Art. 6(3)(c)) the Convention does not guarantee as such a right to free legal aid in civil cases. Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings, can such a right be invoked by virtue of Art. 6(1) of the Convention (cf. ECHR, Airey judgment. Series A, N° 32). 4. The Commission considers that in the present case there were no exceptional circumstances which would have required the applicant's legal representation by either his union or a solicitor in order to be effectively able to seize an Industrial Tribunal (or other court) with his case. If there was in fact a remedy in an Industrial Tribunal as he claims he could no doubt have brought his case himself, without any legal representation. Industrial Tribunal proceedings are designed to be conducted in a practical and straightforward manner without too much emphasis on formalities. Legal representation may be useful, but is by no means a requirement in such proceedings. In particular there is no legal obligation to be assisted by trade union officials as the applicant seems to assume. As regards the 6 - alternative possibility of representation by a solicitor, the applicant in fact consulted one and was told that he would not qualify for the grant of free legal aid due to the level of his family income. In those circumstances, the applicant could normally be expected to instruct the solicitor concerned at his own expense if he really wanted to pursue his case with legal representation. However, he neither did this, nor did he actually apply for the grant of legal aid. The applicant is himself to blame for these omissions. There is no appearance that he was prevented from bringing his case before a court either by the state of the United Kingdom legislation, or by the actions of the competent authorities. His complaint in this respect must accordingly be rejected as being manifestly ill-founded within the meaning of Art. 27 (2) of the Convention- 5. The applicant also complains of an interference with his rights under Art. 11 of the Convention. However, this Article guarantees mainly the individual's right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. The applicant in fact was not prevented from forming or joining a trade union. What he really claims is a right to his union being compelled to perform a particular activity for the protection of his interests, namely to provide him with legal assistance or representation. Such a right of an individual trade union member is not included among the guarantees of Art. 11 (cf. mutatis mutandis ECHR, National Union of Belgian Police case. Series A, Vol.19 and Swedish Engine Drivers' Union case, ibid. Vol. 20). This part of the application is accordingly incompatible with the provisions of the Convention ratione materiae and must be rejected under Art. 27 (2). For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE Secretary to the Commission President of the Commission (H. C. KRUGER)