National Union of Journalists, R (on the application of) v Central Arbitration Committee & Anor

For the statutory recognition scheme, an agreement is in force when it is presently binding on the parties. A genuine collective agreement need not have been fully operated, depend on the creation of a joint negotiating committee, or have demonstrated prospects of future bargaining. Evidence that the parties have acted under any of its terms may establish that it is not a sham. Article 11 of the European Convention on Human Rights does not guarantee union recognition or collective bargaining. Article 14 requires discriminatory treatment attributable to the state. A neutral rule giving priority to an existing voluntary agreement is not discrimination merely because an employer uses it to exclude another union.

The National Union of Journalists sought judicial review after the Central Arbitration Committee held that its application for statutory recognition was inadmissible. Mirror Group Newspapers had already entered into a voluntary recognition agreement with the British Association of Journalists for journalists in its Sports Division.

The CAC considered the agreement to be in force despite the absence of a fully established joint negotiating committee and limited operation. Hodge J upheld the CAC’s decision. The NUJ appealed, arguing that the agreement was not already in force and that exclusion from the statutory procedure infringed Articles 11 and 14 of the Convention. The central issues were the construction of paragraph 35 and the alleged state responsibility for the resulting position.

Appeal dismissed. Buxton LJ gave the judgment, with Latham LJ and Sir Martin Nourse agreeing. The CAC and Hodge J had correctly treated the voluntary recognition agreement as preventing the NUJ’s application from being admissible.

1. Paragraph 35. Paragraph 35(1) of the Trade Union and Labour Relations Act 1992 required the application to be excluded where a collective agreement was already in force under which a union was recognised as entitled to conduct collective bargaining for workers in the relevant bargaining unit.
2. Meaning of ‘in force’. In ordinary contractual understanding, an agreement is in force when it is binding on the parties. The fact that collective agreements may not be legally enforceable concerns enforcement, not formation. Contractual analysis therefore provided a strong analogy.
3. No further condition precedent. The agreement did not make its coming into force conditional on establishing the Joint Negotiating Committee, implementing every provision, or demonstrating a reasonably near prospect of future bargaining. Once the agreement was genuine, doubts about its future viability did not deprive it of present force. Subsequent inaction or impossibility might later cause an agreement to collapse, but that had not occurred.
4. Evidence of genuineness. The CAC was entitled to rely on evidence that the parties had dealt under terms of the agreement, including discussions about redundancies and seven-day publication and the employer’s refusal to deal with the NUJ. It was unnecessary to show that bargaining had occurred on every subject listed in the agreement.
5. Convention rights. Article 11 of the European Convention on Human Rights did not guarantee recognition for collective bargaining or a right to collective bargaining. The state retained a choice of means for securing a union’s right to be heard. Article 14 required discriminatory state action. The rule in paragraph 35 was even-handed and was not directed at any status or characteristic of the NUJ. The employer was not the state, and the state’s failure to prevent the employer’s use of the rule could not itself amount to discrimination.

The court noted, but did not resolve, the wider question of the ambit of Convention rights. The appeal was dismissed, with costs to be agreed.

• Court of Appeal (Civil Division) — [2005] EWCA Civ 1309: dismissed the appeal, upheld the CAC’s decision and Hodge J’s judgment, and ordered costs to be agreed.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Hodge J rejected the NUJ’s challenge to the CAC determination.