The Human Rights Act 1998 is in force in England on 2 October 2000, having previously come into force in Wales, Scotland and Northern Ireland. For the first time, fundamental human rights contained in the European Convention on Human Rights are incorporated into domestic law.

The Human Rights Act is already having a major impact on all areas of law. Trade union and employment law will be no different. Through the creation of new rights against "Public Authorities" and requiring all existing laws to be interpreted consistently with the European Convention on Human Rights, the Act represents a cultural shift towards the prominence of positive individual and collective rights. These will create new bargaining and negotiating opportunities as well as legal challenges.

In two articles this month, we explore first the novel way in which Convention rights are incorporated into domestic law, and, secondly, the way in which specific Convention articles can be put to use by trade unions.

Structure of the Human Rights Act

The Human Rights Act operates in two main ways:

1 "The interpretative obligation": all existing laws must be interpreted so as to conform with the Convention and any relevant case law from the European Court of Human Rights, unless the law cannot be read in a way which conforms with the Convention.
2 New rights against "Public Authorities": it is unlawful for a Public Authority to act in a way which is incompatible with a Convention right (except when prohibited from acting compatibly by primary legislation). "Public Authorities" include individual Courts and Tribunals. A new type of legal claim - "breach of a Convention Right" is created against Public Authorities, but not against a private party.

The Interpretative obligation of courts and tribunals has three elements:

  • Courts and Tribunals must read primary and subordinate legislation and give effect to it in a way which is compatible with Convention rights "so far as it is possible to do so" (S.3 HRA).
  • In deciding a question which has arisen in connection with a Convention right, Courts and Tribunals must take into account:

    - any judgment, decision, declaratory or advisory opinion of the European Court of Human Rights; and
    - any opinion or decision of the Commission or decision of the Committee of Ministers wherever made, and so far as the Court or Tribunal considers it relevant (S.2 HRA).
  • It is unlawful for a Public Authority - which includes courts and tribunals - to act in a way which is incompatible with a Convention right. But note that the duty is limited to the extent that the Public Authority could not have acted differently because of primary legislation which cannot be read or given effect to in a manner consistent with the Convention right. (S.6 HRA).

Courts and Tribunals must also adopt the Strasbourg method of judicial reasoning, which involves an explicit balance of the rights of individuals against the rights and freedoms of others and the general public interest. If possible, Courts and Tribunals must find a statutory or other legal interpretation which is consistent with Convention rights. If that is not possible, a court (but not a tribunal) may make a "declaration of incompatibility", but it does not affect the validity of the statutory provisions.

Public Authorities Section 6 (3) of the Human Rights Act envisages three types of Public Authorities:

1 "outright" Public Authorities. These are Authorities which exercise statutory or prerogative powers, such as Local Authorities, the Police, Immigration Officers and Prisons;
2 "functional" Public Authorities: certain of whose functions are of a public nature; and
3 Courts and Tribunals.

"Outright Public Authorities" (and Courts and Tribunals) must act in accordance with Convention rights in relation to all their activities. "Functional" Public Authorities are not acting unlawfully where the particular act under challenge is of a "private nature".

Who can bring proceedings against a Public Authority under the Act? - The need for a "victim" - Only a person who is or would be a "victim" can bring proceedings or rely on a Convention right directly against a Public Authority. It is not necessary that the Applicant has actually suffered the consequences of the alleged breach provided that there is a risk of their being directly affected.

Courts, Tribunals, Time Limits and Remedies - Applicants relying indirectly on Convention rights through the interpretative obligation, will be able to bring proceedings in the same Court or Tribunal as before. They will make the same type of claim as previously, but the law will have to be interpreted consistently with the relevant Convention right, so far as is possible.

"Victims" bringing proceedings directly against a Public Authority will have to do so in the "appropriate Court or Tribunal". The appropriate Court or Tribunal will be determined by rules yet to be made. It is possible that difficult legal questions will arise as to where proceedings are to be brought directly against a Public Authority. Most proceedings will probably be brought against Public Authorities by way of judicial review and an Applicant in judicial review proceedings can claim damages as part of her application. Claims brought directly against Public Authorities must be brought within one year of the act complained, with extensions on the grounds of justice and equity.

There are circumstances in which the one year time limit may even be reduced and, we suggest that advice is sought at an early stage.

Actions relying on the interpretative obligation will be subject to the time limit applicable to the main cause of action - eg unfair dismissal or sex discrimination or breach of contract.

Anyalysing Convention Rights

Taking account of existing human rights law in interpreting UK law requires an understanding of how Convention rights operate. Convention rights are said to be either unqualified rights or qualified rights. Unqualified rights, such as the right to a fair trial (Article 6) are absolute and there are derogations or justifications permitted. Qualified rights, include the right to respect for private and family life (Article 8), the right to freedom of thought, conscience and religion (Article 9), the right of freedom of assembly (Article 11) and the right of protection of property (Article 1 of the First Protocol). The correct approach is to consider, first, whether there is a potential violation of the basic right; and then to consider whether the violation is within the permitted qualification.

The precise wording of qualified rights differs from article to article in the Convention. However, common themes emerge and, in order to show that it is entitled to restrict the operation of a right, the alleged violator has to prove that interference was in accordance with the law or prescribed by law; the aim of the restriction in question is legitimate according to the wording in the particular Convention right; and the restriction in the Convention right is necessary in a democratic society - in other words proportional.

Next we examine what this could mean in the field of trade union and employment law.