The Human Rights Act 1998
The scheme of the Act that partially incorporates the European Convention on Human Rights into UK law.
"The design of the [Human Rights Act] is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament."
3.11.97, Hansard (HL), col. 1228, per the Lord Chancellor.
The European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") is an international treaty of the Council of Europe1 which guarantees a number of basic human rights and established the European Court of Human Rights ("the ECHR")1 in Strasbourg. The United Kingdom ratified the Convention in 1951; and in 1966 it accepted the right of anyone within its jurisdiction claiming to be the victim of a violation by the state of the rights set out in the Convention to petition the ECHR, once they had exhausted all their domestic remedies.
The present Government was elected on a manifesto2 that committed it "by statute [to] incorporate the [Convention] into UK law to bring ... rights home". Its aim in bringing forward the Human Rights Bill was, according to the White Paper3 it presented at the time, "to make more directly accessible the rights which the British people already enjoy under the Convention". The Government believed the time had come "to enable people to enforce their Convention rights against the state in the British courts, rather than having to incur the delays and expense which are involved in taking a case to ... Strasbourg"4.
British courts already applied the Convention in many different circumstances before the Human Rights Act 1998 ("the HRA") came fully into force on 2 October 20005, and so6 the HRA gives "further effect" in domestic law to all bar one of the rights and freedoms guaranteed under the Convention ("the Convention rights")7. It does so not by making the Convention rights a part of substantive domestic law8 but by:
In this article, we examine the scheme of the HRA. In the article that follows it (on pp.6-14), we examine the impact that the Convention rights are likely to have, through the HRA, on employment law. References in this article to sections are to sections of the HRA, unless otherwise indicated.
LEGISLATION
Before 2 October 2000, in construing any provision of domestic legislation that was ambiguous in the sense that it was capable of a meaning that either conformed to or conflicted with the Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it: see, for example, MacDonald v Ministry of Defence 9.
New rule of construction
Now, so far as it is "possible" to do so, all (existing and future) primary legislation10 and subordinate legislation10 must be "read and given effect" by courts and tribunals (and other public authorities) in a way that is compatible with the Convention rights (s.3(1)). This will ensure that, if it is possible to interpret a statute in two ways - one compatible with the Convention and one not - the courts will always choose the interpretation that is compatible11.
The White Paper3 explained that the obligation imposed by s.3(1) "goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so."
During the Bill's committee stage in the House of Lords, the Lord Chancellor, Lord Irvine, said12: "The word 'possible' is the plainest means that we can devise for simply asking the courts to find the construction consistent with the intentions of Parliament and the wording of legislation which is nearest to the Convention rights ... we want the courts to construe statutes so that they bear a meaning that is consistent with the Convention whenever that is possible according to the language of the statutes but not when it is impossible to achieve that. More generally, we proceed on the basis that Parliament, at least post-ratification of the Convention, must be deemed to have intended its statutes to be compatible with the Convention, to which the United Kingdom is bound, and that courts should hold that that deemed general intention has not been carried successfully into effect only where it is impossible to construe a statute as having that effect."
During the Bill's committee stage in the House of Commons, the Home Secretary, Jack Straw, elaborated as follows13: "... we want the courts to strive to find an interpretation of legislation that is consistent with Convention rights, so far as the plain words of the legislation allow, and only in the last resort to conclude that the legislation is simply incompatible with them ... for the avoidance of doubt, I will say that it is not our intention that the courts, in applying [section] 3, should contort the meaning of words to produce implausible or incredible meanings."
In striving to find a compatible interpretation, courts and tribunals could decide that they had to read words into the legislation in the same way as they have done to give a purposive interpretation to domestic legislation that purports to implement an EC Directive (see, for example, Litster and others v Forth Dry Dock & Engineering Co Ltd (in receivership) and another14). However, they also have to construe such legislation so as to accord with the ECJ's interpretation of the Directive "if that can be done without distorting the meaning of the domestic legislation" (Webb v EMO Air Cargo (UK) Ltd15).
Previous interpretations
"To the extent that [the new 'rule of construction' embodied in s.3(1)] affects the meaning of a legislative provision," the White Paper3 said, "the courts will not be bound by previous interpretations. They will be able to build a new body of case law, taking into account the Convention rights."
For example, employment tribunals could now interpret and apply the well-known provisions of s.98 of the Employment Rights Act 1996 so as to find either that the dismissal of an employee for a reason that is incompatible with a Convention right is automatically unfair, or, if that reason came under one of the categories of "potentially fair" reasons, that the employer acted "unreasonably" in treating it as "a sufficient reason for dismissing the employee".
Whether the dismissal was fair or unfair must also be determined "in accordance with equity and the substantial merits of the case"; and the tribunal could decide that it would not be in accordance with equity to decide that the dismissal was fair where it would have been unlawful under s.6(1) if the employer had been an "obvious" public authority (see p.4).
Declarations of incompatibility
The Government expects that, "in almost all cases"16, the courts will be able to interpret legislation compatibly with the Convention rights. If it is not possible to do so, "the [HRA] does not allow the courts to set aside or ignore Acts of Parliament"11.
However, in "the very rare cases"17 where the higher courts18 (which do not include employment tribunals or the EAT19) find it impossible to read and give effect to a provision of primary legislation10 in a way that is compatible with a Convention right, they may make a declaration of that incompatibility20 (s.4(2)). Those same courts may also make a declaration of incompatibility if they are satisfied that a provision of subordinate legislation10, made in the exercise of a power conferred by primary legislation, is incompatible with a Convention right, and that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of that incompatibility (s.4(4)). Therefore, unless the "parent statute" cannot be interpreted as permitting removal of the incompatibility (which it probably would permit if it conferred a regulation-making power in general terms), the higher courts will be able to strike down or set aside Regulations that are incompatible with the Convention rights and could have been framed differently.
Any other provision of subordinate legislation that cannot be construed compatibly with the Convention rights may be disapplied by any court or tribunal, including by employment tribunals and the EAT, which remain free to draw attention, in their decisions or judgments, to the need for Parliament to consider legislative change.
A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given (s.4(6)(a)), which will remain in full force and effect unless and until it is amended. Nor does it bind the parties to the proceedings in which it is made (s.4(6)(b)).
Remedial orders
Where a provision of legislation has been declared under s.4 to be incompatible with a Convention right, and if there is no further appeal21, the appropriate Government minister may by order make such amendments to the legislation (which, in the case of an incompatible provision of subordinate legislation, will be the primary legislation under which the subordinate legislation was made) as he or she considers necessary to remove the incompatibility, if he or she considers that there are "compelling reasons" for doing so (s.10(1)(a), (2) and (3)). The White Paper3 envisaged that a declaration of incompatibility would "almost certainly" prompt the Government and Parliament to change the law, a view shared by the Lord Chancellor when the Human Rights Bill was before Parliament22. If they do not, a case could be taken to Strasbourg.
A remedial order could also be made: if it appears that, having regard to a finding of the ECHR (which need not be in a case involving the UK), a statutory provision is incompatible with an obligation of the UK arising from the Convention (s.10(1)(b)); or where a provision of subordinate legislation has been quashed, or declared invalid, by reason of incompatibility with a Convention right (s.10(4)).
PUBLIC AUTHORITIES
Nothing in the HRA creates a criminal offence (s.7(7)), but s.6(1) makes it unlawful for a "public authority" (see below) "to act in a way which is incompatible with a Convention right", unless:
An "act" includes a failure to act but does not include25 a failure either to introduce in, or lay before, Parliament a proposal for legislation or to make any primary legislation or remedial order (s.6(6)).
What is a "public authority"?
A "public authority" includes (a) a court or tribunal (see below), and (b) "any person certain of whose functions are functions of a public nature", but does not include25 Parliament26 or a person exercising functions in connection with parliamentary proceedings (s.6(3) and (4)). Section 6(5) provides: "In relation to a particular act, a person is not a public authority by virtue only of [s.6(3)(b)] if the nature of the act is private."
So the HRA draws a distinction between:
Organisations that have no public functions, such as private employers, fall outside the scope of s.6. In other words, s.6 does not impose any liability on them. The Government decided that Convention rights should be available in proceedings involving what might be very broadly described as "the state", but that they would not be directly justiciable in actions between private individuals28.
Acts "relating to employment matters" "might be regarded as private in nature", according to the Lord Chancellor29. "In relation to employment matters," he added29, "I do not see a distinction between a private security company which has a contracted-out prison in its portfolio and one which does not. There is no reason to make the first company liable under [s.6] in respect of its private acts and the second one not liable simply because the first company is also responsible for the management of a prison. As far as acts of a private nature are concerned, the two private security companies are indistinguishable; nor do I see a distinction in this area between Railtrack and other property developers or between doctors with NHS patients and those without."
So it seems that neither private employers nor bodies with a mix of public and private functions are liable under the HRA for any of their acts or omissions in relation to employment matters. But the Convention rights are binding on the "state as employer", whether the latter's relations with its employees are governed by public or private law (Swedish Engine Drivers' Union v Sweden - see p.13).
Courts and tribunals
Before 2 October 2000, if the common law was uncertain, unclear or incomplete, the courts would rule wherever possible in a manner that conformed to the Convention.
Courts and tribunals now have "the duty of acting compatibly with the Convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals"30. However, in the Lord Chancellor's view, "the courts may not act as legislators and grant new remedies for infringement of Convention rights unless the common law itself enables them to develop the new rights or remedies". He believed that "the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles"30.
So, where a person has some existing (common law) cause of action against a private employer (or a body with a mix of public and private functions) which a civil court or an employment tribunal has jurisdiction to hear (such as for wrongful dismissal), and brings a claim against the employer before the court or tribunal, the latter could decide that the dismissal was wrongful because the reason for it was incompatible with a Convention right. Presumably, however, the court or tribunal could not do so if the claimant was lawfully dismissed (that is, not in breach of contract), regardless of the reason for the dismissal, because he or she would not then have had an existing cause of action. Nor would he or she have had one if the employer had refused to employ him or her.
Where an employee resigned because his or her employer had acted incompatibly with a Convention right, and then claimed before an employment tribunal that he or she had been constructively dismissed, it could be argued that the employer's conduct amounted to a repudiatory breach of an implied term of the contract of employment that the employer would not act incompatibly with the Convention rights.
Proceedings
Anyone who claims that a public authority (see above) has acted, or proposes to act, in a way that is made unlawful by s.6(1) (see above) may:
but only if he or she is (or would be) a "victim" of the unlawful act (ss.7(1), (2), (5) and (6) and 22(4)). If the proceedings are brought by way of judicial review, the applicant will be treated as having been entitled to bring them in relation to the unlawful act only if he or she is (or would be) a victim of that act (s.7(3) and (4)).
Who is a "victim"?
A person is a victim of an unlawful act only if he or she would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the ECHR in respect of that act (s.7(7)). Such a victim includes any person, company, non-governmental organisation or group of individuals who or which is, or runs the risk of being, "directly affected" by the act in question.
A representative body (such as a trade union) or interest group (such as the Equal Opportunities Commission) cannot bring a case unless it is itself a victim, but there is nothing to stop it providing legal or other assistance to a victim. In judicial review proceedings, by contrast, anyone with a "sufficient interest" in the proceedings is entitled to bring them.
JUDICIAL REMEDIES
A court or tribunal that finds that any act (or proposed act) of a public authority is (or would be) unlawful under s.6(1) "may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate" (s.8(1)). What remedy is appropriate will, according to the White Paper3, depend both on the facts of the case and on "a proper balance between the rights of the individual and the public interest".
It is not within an employment tribunal's powers to grant some remedies that it is open to a civil court to grant, such as an injunction, but the relief or remedies that employment tribunals may grant could be added to by an order made under s.7(11).
Damages
Damages for an unlawful act of a public authority may be awarded only by a court or tribunal that has power to award damages, or to order the payment of compensation, in civil proceedings (s.8(2)). No award of damages is to be made unless, taking account of all the circumstances of the case, the court or tribunal is satisfied that the award is "necessary to afford just satisfaction" to the person in whose favour it is made.
In determining whether or not to award damages, or the amount of the award, the court or tribunal must take into account the principles applied by the ECHR in relation to the award of compensation under Article 41 of the Convention (s.8(4)). The Government's aim is, according to the White Paper3, that people should receive damages equivalent to what they would have obtained had they taken their case to Strasbourg. As a result, awards are likely to be modest.
Article 13
Article 13 of the Convention provides that anyone whose Convention rights are violated shall have an "effective remedy" before a national authority. This is not one of the Convention rights, but the Lord Chancellor said that the HRA gives effect to Article 13 "by establishing a scheme under which Convention rights can be raised before our domestic courts". The Government believes that s.8 "provides an exhaustive code of remedies for those whose Convention rights have been violated", and that "nothing further is needed"33. Lord Irvine added that "the courts may have regard to Article 13", and relevant case law on it, particularly when considering the provisions of s.8(1)34.
STRASBOURG JURISPRUDENCE
Courts or tribunals determining a question that has arisen in connection with a Convention right (such as whether or not it is possible to construe legislation compatibly with the right) must take account of any (past or future) judgment, decision, declaration or advisory opinion of the ECHR or the (now defunct) European Commission of Human Rights ("Strasbourg jurisprudence"), whether or not it was made or given in a case involving the UK35, so far as (in their opinion) it is relevant to the proceedings in which that question has arisen (s.2(1)).
Where it is relevant, the Government would expect courts and tribunals to apply Strasbourg jurisprudence and its principles (see pp.6-7) to the cases before them. But they are not bound to follow it. The HRA permits them to depart from Strasbourg jurisprudence, and on occasion it might well be appropriate for them to do so. For example, circumstances may arise in which a judgment given by the ECHR decades ago contains pronouncements that it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting the UK. The HRA would allow the courts to use their common sense in applying the ECHR's judgment to such a case35.
References
1 The Council of Europe and the ECHR are entirely separate from the European Union and the European Court of Justice in Luxembourg.
2 "New Labour - because Britain deserves better".
3 "Rights brought home: the Human Rights Bill", Cm3782, October 1997.
4 British people can still take a case to Strasbourg once they have exhausted all their domestic remedies, which now include the legal routes opened up by the HRA.
5 The Human Rights Act 1998 (Commencement No.2) Order 2000, SI 2000/1851 (C.47).
6 18.11.97, Hansard (HL), col. 478.
7 These are the rights and freedoms set out in Articles 2 to 12 and 14 of the Convention, Articles 1 to 3 of the first Protocol to the Convention and Articles 1 and 2 of the sixth Protocol, as read with Articles 16 to 18 of the Convention (s.1(1) and (3)). Those Articles have effect for the purposes of the HRA subject to any "designated derogation" within the meaning of s.14 or "designated reservation" within the meaning of s.15 (s.1(2)). The Convention rights may be amended to reflect the effect, in relation to the UK, of a Protocol to the Convention which the UK has either ratified or signed with a view to ratification (ss.1(4) and (5)). The right set out in Article 13 of the Convention (see text) is the only right guaranteed under the Convention that is not a Convention right.
8 18.11.97, Hansard (HL), col. 508.
9 [2000] IRLR 748.
10 "Primary legislation" includes Acts of (the Westminster) Parliament, Orders in Council amending such Acts or made in exercise of the royal prerogative, Regulations to the extent that they amend such Acts and Commencement Orders. "Subordinate legislation" includes Orders in Council that are not "primary legislation", Acts of the Scottish Parliament or the Northern Ireland Assembly, Regulations made under "primary legislation" to the extent that they do not amend it, and Regulations made by a member of the Scottish Executive or by a Northern Ireland minister or department.
11 3.11.97, Hansard (HL), col. 1230.
12 18.11.97, Hansard (HL), col. 535.
13 3.6.98, Hansard (HC), cols. 415 and 421-422.
14 [1989] IRLR 161.
15 [1993] IRLR 27.
16 16.2.98, Hansard (HC), col. 780.
17 3.11.97, Hansard (HL), col. 1228.
18 These include the House of Lords; in England and Wales or Northern Ireland, the High Court or the Court of Appeal; and in Scotland, the High Court of Justiciary sitting other than as a trial court or the Court of Session (s.3(5)(a), (d) and (e)).
19 There is no EAT in Northern Ireland, where an appeal from an employment tribunal's decision lies directly to the Province's Court of Appeal. So a declaration of incompatibility could be made, in proceedings that started in an employment tribunal, more speedily in Northern Ireland than anywhere in Great Britain.
20 Although the courts have a discretion not to make a declaration of incompatibility because of the particular circumstances of any case, the Lord Chancellor would certainly expect courts generally to make such declarations when they find an Act to be incompatible with the Convention: 17.11.97, Hansard (HL), col. 546.
21 That is, everyone who may appeal has stated in writing that they do not intend to do so; the time for bringing an appeal has expired and no appeal has been brought within that time; or an appeal brought within that time has been determined or abandoned.
22 27.11.97, Hansard (HL), col. 1139.
23 That is, unless primary legislation requires the public authority so to act.
24 That is, unless primary legislation gives the public authority no choice but to act in this way.
25 There is, therefore, no possibility of proceedings being brought against the Crown or Parliament for failing to legislate so as to prevent, or provide a remedy for, acts or omissions of, for example, an employer.
26 "Parliament" does not include the House of Lords in its judicial capacity (s.6(4)).
27 These are likely to be identified by the courts using the same principles as those adopted when deciding whether or not a public body is amenable to judicial review: 17.6.98, Hansard (HC), cols. 406 and 410.
28 3.11.97, Hansard (HL), col. 1232; 24.11.97, Hansard (HL), cols. 796 and 811; 17.6.98, Hansard (HC), cols. 406-410.
29 24.11.97, Hansard (HL), cols. 810-811 and 812.
30 24.11.97, Hansard (HL), cols. 783-784.
31 Proceedings in respect of a judicial act may be brought only in the High Court, either by exercising a right of appeal or by way of judicial review (s.9(1)), while any other claim may be brought in any court or tribunal (rule 7.11 of the Civil Procedure Rules 1998).
32 This is subject to any rule imposing a stricter time limit in relation to the procedure in question. For example, in relation to judicial review proceedings, the time limit would be three months.
33 18.11.97, Hansard (HL), col. 475.
34 18.11.97, Hansard (HL), col. 477.
35 18.11.97, Hansard (HL), cols. 514-515.
The Human Rights Act 1998: main points to note
