A pro-life University College Dublin student is to take legal action so he can formally leave UCD Students’ Union.
The union say this is not possible.
We asked Legal Coffee Drinker, what’s it all about?
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffe Drinker: “Well, it relates to Article 3.1 of the Rules of UCD Students’ Union which provides that all persons registered as students within the university shall be members. The question which has arisen is whether or not it is open for a student to leave the union, given the terms of this provision. UCD Students’ Union, relying on the wording of Article 3.1, says no: once a student, always a union member, it says.
However, as someone (could it have been Know It All Law Student?) pointed out in the comments section of this post yesterday, there’s a right of dissociation in the Irish Constitution which is recognised by the Irish courts, the dogs in the street and indeed the rats under the floor of the Sutherland Legal Theatre.
“What this means is that no one can be forced to join a trade union against their will, or penalised for not joining one. Although it doesn’t seem to have come up in a case to date (perhaps because it’s so blindingly obvious?) it would follow from the above that an existing UCD Student Union member is free to leave if they so wish.”
Broadsheet: “Is the right to dissociate expressly stated in the Irish Constitution.”
Legal Coffee drinker: “No, but it’s been held by the Supreme Court to be an implicit corollary of the right to associate which is expressly stated in Article 40 of the Constitution.
There’s a trilogy of cases.The first one is National Union of Railwaymen v Sullivan [1947] IR 77, in which a provision preventing workers from joining any union other than the prescribed one was held to be unconstitutional, on the basis that it deprived the citizen of a free choice of the persons with whom he chose to associate. According to the Court: “[b]oth logically and practically, to deprive a person of the choice of the persons with whom he will associate, is not a control of the exercise of the right of association, but a denial of the right altogether.
“Subsequently, in Educational Company v Fitzpatrick [1961] IR 345, the Court held that employers could not force their employees to join a trade union, stating that ‘under the Constitution a citizen is free to join or not to join an association or union as he pleases. Further, that he cannot be deprived of the right to join or not to join such association or union as he pleases… and that is tantamount to saying that he may not be compelled to join any association or union against his will’.
The final case in the trilogy is Meskell v CIE [1973] IR 121, in which an employee who lost his job as a result of not being a member of a union was entitled to damages against his employer for abuse of his constitutional right.”
Broadsheet: “So the provision in the UCD Students Union Rules violates the Constitution?”
Legal Coffee Drinker: “Yes. In two ways. Firstly, by automatically making all students members. Secondly, by not providing any way to leave if they so wish. In fact, you could argue it’s even more objectionable than the cases above, because it doesn’t just penalise people for not being members of a union, it actually forces them to be, and stay, members.”
Broadsheet: “And is the Constitution enforceable against bodies like the SU which aren’t the State?”
Legal Coffee Drinker: Constitutional rights are primarily enforceable against the State and State bodies. But in certain circumstances they may be invoked against private bodies too. The right of association (and dissociation) is an example of this. In both Fitzpatrick and Meskell it was accepted that this right could be enforced by individuals against private persons (in that case, employers) who sought to curtail it. To quote from the Supreme Court in Meskell:-
‘[I]f the Oireachtas cannot validly seek to compel a person to forego a constitutional right, can such a power be effectively exercised by some lesser body or an individual employer? To exercise what may be loosely called a common law right… as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two’.
“In other words constitutional rights must prevail over any common law rights that the Union may claim arising from the terms of its constitution, including Article 3.1. For the Union to rely on Article 3.1 of its Rules to preclude students from leaving is classic abuse of common law rights within the meaning of the quote from Meskell above, and cannot be used to restrict freedom of dissociation.”
Broadsheet: “So will the student win his case?”
Legal Coffee Drinker: “It appears so. The principle is very simple. People can’t be forced to join or continue to be members of unions against their will. The case law on freedom of dissociation has been round for a long time, too. [drains coffee wearily} I’m surprised no one thought of it when drafting the UCD Student Union Rules in question.”
Broadsheet: “Thanks Legal Coffee Drinker.”
Legal Coffee Drinker: “Sure, whatever.”
Previously: Freedom To Disassociate
