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On 2nd October England caught up with Wales, Scotland and Northern Ireland in bringing into force the Human Rights Act 1998. The legislation incorporates the European Convention on Human Rights into domestic law. This will make it far easier for people in Britain to bring cases against public authorities, private companies and courts themselves. The European Review examines the likely effect of the new law and the reaction to it.
The Council of Europe was established in 1949 by the western European democracies to to 'protect human rights, pluralist democracy and the rule of law; to promote awareness and encourage the development of Europe's cultural identity and diversity; to seek solutions to problems facing European society' and 'to help consolidate democratic stability in Europe by backing political, legislative and constitutional reform'. It is not connected with the European Union and the UK has been a member since the start.
In 1950 ten member countries signed the Convention which guaranteed the right to: 'life, liberty and security of person; a fair trial in civil and criminal matters; vote and be a candidate in elections; freedom of thought, conscience and religion; freedom of expression (including freedom of the media) [and] respect for property'. It prohibited 'torture and inhuman or degrading treatment or punishment; the death penalty; discrimination in the enjoyment of rights and freedoms guaranteed by the Convention; expulsion by a state of its own nationals or refusal to admit them; [and] collective expulsion of aliens'. It also set up the European Commission (later court) of Human Rights.
However, although Britain had signed the Convention it did not follow the other members, apart from Ireland, in making it part of national law. This was partly because of the system of common law and precedent which obtained in these two countries but the effect was to make litigation under the convention very time-consuming and expensive as each case had to be taken to the court in Strasbourg. This situation has now been remedied by the new Act. For the first time it moves law in the UK towards positive definitions of individual and collective rights rather than being free to do anything which was not forbidden. It puts the onus on both legislators and public authorities, which include police and immigration officers, not to pass laws, or interpret them, in ways which conflict with the convention. The courts in the UK can declare laws or actions of public authorities 'incompatible' with the convention but only an individual can can bring cases to court that rely on a convention right and they must have either suffered or be likely to suffer from its being broken.
What effect are these momentous legal events going to have for trade unions and employment law ? Some possible grounds for trade union action can be found in various articles of the convention. Article 6 gives the right to a fair trial and private sector employment is covered. Thus concerns about the fairness of disciplinary hearings, pension and retirement appeals could become cases under the convention. Article 8 gives a qualified right to respect for family and private life and this could be useful in areas such as sexual orientation discrimination, dress codes, surveillance of employees' use of telephone and computers and unfair dismissal where there has been interference with privacy. It could also toughen up provisions of the Data Protection Act 1998 and the Employment Relations Act 1999. Article 9, the right to freedom of thought, conscience and religion, is likely to be used in cases where employees of a certain religion are not allowed time off for holy days etc. Article 11 could bring problems as well as opportunities for unions as it deals with the right to freedom of assembly and association. Dismissal of a worker for striking could be further curtailed but trade unions' ability to discipline and expel members will also come under the microscope. Article 14 prohibits discrimination in the access to other convention rights and might be used to interpret laws such as the Part Time Worker regulations 2000.
Reaction to the new Act in the UK has varied from 'a bonanza for lawyers' and, from the Conservative opposition, 'batty' to the government's reassuring 'From now on you can just go before a British judge and argue your case much more quickly'.
The European Convention of Human Rights is on the internet at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf
Junior doctors were left out of the 1993 directive and were only recently included in a new agreement (see Issue 11). However in an ECJ case brought by the SIMAP union from Valencia in Spain, the court ruled that doctors involved in primary health care did come under the directive. It also stipulated that doctors on call at night should be treated as shift workers but not night workers and that on call hours only counted as working time if the doctor had to be present at the health centre. It also stated that if Spanish law had not transposed the directive properly then it had direct effect and could not be ignored except by the agreement of individuals even if trade unions negotiate an opt-out.
Equal pay regulations were once again found to not apply to benefits gained from pension schemes before May 1990. A Ms. Defreyn had brought a case against her ex-employer, Sabena alleging that she had been denied a pre-retirement payment available to men until they reached 65 years of age. However the court ruled that article 119 of the EC Treaty which called for equality in pay did not apply to such payments.
Unlike the case from Sweden (see Issue 12) where the court ruled that gender discrimination was not valid in job recruitment, the court ruled that there was nothing wrong with a law in Hesse, Germany which sought to increase the number of women in various types of job. The 'HGIG' law was passed by the regional parliament in 1993 to ensure 'equal access of women and men to posts in the public service' but a group of MPs questioned its legality. However the ECJ ruled that as long as there was an objective assessment of each candidate and women were not automatically preferred there was no case to answer.
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