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2. Statements of Compatibility.
Legislation, which is now introduced before Parliament must have a statement
of compatibility with the Convention, signed by the Minister. If the Minister
cannot make such a statement of compatibility the Act however still can go through.
3. Public Authorities must
act in compliance with the Convention.
If a public authority "acts" in a manner, which is incompatible (which
would include failure) with the rights conferred under the convention, they
commit a tort.
Public Authorities include:
* Local Authorities
* Government Departments
* Regulatory Bodies
* Utilities
* Courts
* Charities running Nursing and Residential Homes
As far as the practical effect of this is concerned, it is probably going to be seen more on a day to day basis in the Courts. Thus if a party to the litigation wants an adjournment for health or family reasons, they should stand a better chance of getting it as the Courts have to follow the convention.
The recent Civil Procedure Rules, which seem to impose timetables that were written in stone, could well be a breach of the convention.
There is no list of public authorities there is likely to be much confusion.
Quite likely the BBC is a public service broadcaster but ITV is not.
Doctors treating NHS patients - public authority status. What if treated as private patients?
How will it Affect Employers
?
Article 1
Countries that have signed up to the convention must enforce it.
Article 2 - Right To Life
Murdered by nurse on a children's ward of hospital. No breach of Article 2.
Toxic emissions from a factory causing poisoning and possibly cancer and the fact that the information about the factory had been withheld resulting in a claim against Italy.
Withdrawing medical treatment for those in a persistent vegetative state is not a breach.
The right to life likely to be raised by anti-abortionists.
Article 3- Prohibition
Of Inhuman And Degrading Treatment
Access to Treatment
The Court of Appeal has already decided one case where it decided it could not
be called upon to tell Health Authorities how to allocate their budgets.
"It would be totally unrealistic to require the Authority to come to the Court with its accounts and demonstrate the effects of funding treatment for one patient upon others" Bingham MR.
Transsexuals who were refused gender reassignment operations claimed breach of Article 3 inhuman and degrading treatment and Article 8 right to respect for private life. The Court threw out these arguments.
Possibly will see invoked by patients at mental institutions.
Article 4: Prohibition
of Slavery
Likely challenges - doctors' working hours.
Cases relating to long hours have in the main failed at Strasbourg as the courts have always come to the conclusion that the employment relationship is a contractual one and the employee can resign if he doesn't like the hours. There are not many employers who will threaten dismissal caused through stress related illnesses or violate the prohibitions on forced labour, inhuman degrading treatment!
The working time regulations and laws relating to bullying, sex discrimination and harassment provide better protection than the Act.
Article 5: Right To Liberty
The individual can be deprived of the right in accordance with law.
Granting Bail: The European court will allow detention if: -
a) fear of absconding;
b) interference with the course of justice;
c) prevention of crime;
d) preservation of public order.
Other reasons for refusing
bail currently applied in England include: -
a) series of offence;
b) committing offences whilst on bail;
Defendants can now challenge the last two.
The failure to produce defendants at bail hearings could well be in breach of the convention.
Hearings have to be brought within a reasonable period. Delays of up to 2 years have been acceptable to the European Court.
Article 6: The Right To
A Fair Trial
This article of the Act provides that individuals are entitled to a fair public
hearing within a reasonable time by an independent and impartial Tribunal. The
Tribunal is "under a duty to conduct a proper examination of the submissions,
arguments and evidence adduced by the parties, without prejudice to its assessments
of whether they are relevant to its decision".
The hearing should be in public except where a Court or the Tribunal determines that in the interest of public or moral or national security the public should be excluded.
All determinations of "civil rights" must be heard within a "reasonable time".
Each party must be given an equal opportunity to present their case and evidence.
As a result, employers and public bodies must ensure that they adopt scrupulously fair procedures when dealing with disciplinary and grievance matters.
Disciplinary proceedings/right
to a fair trial
There is some argument as to whether or not the convention applies to internal
disciplinary procedures. A Disciplinary hearing is not the determination of
a "civil right". Whether or not a dismissal is fair or not will ultimately
be adjudicated by an Industrial Tribunal if it is challenged.
Legal Aid
There is no free right to legal representation under the Convention.
One UK challenge by a woman who had an alcoholic and violent husband was dismissed on the grounds that the court thought that the applicant could present her case without a lawyer "properly".
The refusal to grant Legal Aid for Employment Tribunal cases is currently under challenge.
Article 8: Respect For
A Private And Family Life
Article 8 guarantees respect for privacy including family life, home and correspondence.
It is quite likely that many employers will fall foul of Article 8 as far as recording telephone calls, examining emails, the logging and reviewing of internet sites which employers may have visited, dress codes and imposing no smoking policies may all be in breach of Article 8.
Staff will have no expectation of privacy if they are made aware that their communications are likely to be monitored but are they going to be "in the interest of national security public safety the economic well-being of the country, for the prevention of this order or crime or protection of health and morals or for the protection of the rights or freedom of others".
Halford v UK 1997 - Alison Halford (Senior Police Officer) succeeded in obtaining a ruling from the European Court that her employer's actions in tapping her telephone was a prima facie breach of Article 8. Employers can succeed in telephone tapping arguments if it was necessary to protect the rights of others (including themselves).
CCTV could be challenged for breaching private life. However, employers will be able to justify them by arguing that it is necessary to protect health or others.
An individual is entitled to keep his/her private life private. Employers are entitled to certain personal data. However intrusive questions about personal matters should be avoided. Disclosure of information to third parties could be a breach
Emails. Employers can look at them if it is necessary to protect the others (i.e. if employees are wasting time or if offensive emails are being sent which could amount to harassment).
Family Cases
What is a family? According to Strasbourg it can be a divorced father who is
not living with his children and an unmarried couple cohabiting with a child.
Gay and lesbian and transsexual couples are not a family according to Strasbourg. However, these decisions are likely to be challenged.
Privacy
Article 8 provides that everyone has the right to respect for his private and
family life, his home and his correspondence. Public Authorities cannot interfere
with these rights.
English Law has not got a Privacy Law as such. Attempts to keep things private usually revolve around breach of contract, breach of confidentiality or malicious falsehood actions.
A bar on cross-dressing by a Social Services Trade Administrator was held not to violate Article 8 (Privacy) or Article 10 (Freedom of Expression).
Imposition of codes on workers who come into contact with the Public where this enhances the employer's public image have been upheld. A dress code imposed on individuals who do not come into contact with the public could be a breach?
Article 10: Freedom Of
Expression
Exhibition of obscene paintings allowable.
If an employee were to be dismissed because of body piercing that was not thought to be appropriate the Tribunal must take into account the employee's right to freedom of expression when deciding whether a dismissal was fair.
Freedom of expression does not extend to giving out confidential information about an employer.
Staff however have the right to join a Trade Union and cannot be forced to join a Union.
Freedom for religion
Public authorities must allow employees to practice their religion and cannot
discipline them for doing so.
Ahmad v UK
A Muslim teacher wanted 45 minutes off each Friday to pray. However, when he
had accepted the teaching post which had prevented his attendance at prayers
he had never complained (for the first six years).
Swearing at customers or
colleagues
First offence likely not to justify summary dismissal.
Article 14: Convention Rights Are To Be Enjoyed "Without Discrimination On The Grounds Such As Sex, Race, Colour …. Or Other Status"
People with Disabilities
Although not actually specified in the Act, disabled people are entitled to
the enjoyment of the Convention Rights "without discrimination on any ground
such as sex, colour or other status". "Other status" equals disability.
What does this mean in practice: -
* Interpreters throughout
the course of a trial.
* Blind people to have key documents provided in alternative formats.
* Avoiding prolonged handcuffing of a sign language user.
* Avoiding imposing sterilisation orders on disabled young women.
The employers' decision
making Process
" Does The Law Permit Me To Take This Action "?
Am I following the right procedures in making this decision?
Is the decision I am about to make so perverse that nobody else would or could reach such a decision?
Are an individual's human rights involved and if so, can I legitimately interfere with them? "Jonathan Cooper - the Convention a new way of thinking".
Restrictions
A restriction will not be compatible with the convention unless: -
(1) it is "prescribed
by law"
(2) it pursues a legitimate aim
(3) it is necessary in a democratic society.
Security checks by MI5 not a breach of Article 8.
Protection of health In a 1978 case the protection of health justified forcing a Sikh to wear a crash helmet.
Litigating Human Rights
Actions
Trek to Strasbourg?
No longer necessary. UK Solicitors will be able to enforce rights under the
European Convention in British Courts.
Taking a case to Strasbourg was always expensive, as all domestic appeals had to first be exhausted.
If it is thought that the application of a UK statute is inapplicable with the convention, then an action should be stayed pending the determination of a preliminary point. If a declaration of incompatibility is made then the decision, which have been brought to the attention of the Minister to domestic law should be changed.
UK Court Action
A person who claims that a Public Authority has acted in an unlawful way should
bring an action within the period of one year, beginning with the date on which
the act of complaint took place or such longer time as the court considers equitable
having regard to all the circumstances.
The action must be brought in "the appropriate Court or Tribunal".
As no new court has been created existing courts must be used.
As far as any damages are concerned, damages can be awarded for pecuniary losses (loss of earnings etc.) and non-pecuniary losses (including injury to feelings).
The applicant's conduct will be taken into account.
The European Court has tended not to give any guiding principles as to how its compensation for non-pecuniary losses have been calculated. It is anticipated that the English Courts will make relatively modest awards but in line with existing personal injury cases.
The Future
Tony Blair's proposal of spot fining hooligans and having them marched to cash
points - would have been a breach of the act because a sanction can only be
administered after due process.
Utility companies disconnecting supply impairs family life?
Myra Hindley - Home Secretary likely to be overruled in determining that Hindley should die in prison. Lord Woolf has already conceded that the Home Secretary is unlikely to retain his powers to set murderers sentences.
Jamie Bulger - Jamie Bulger's killers are seeking to protect their identity under Article 8 the Right to Privacy.
Advice has been given to the Independent Schools Council, which is concerned that the Act could allow boarding pupils to have sex at school without fear of punishment.
The Tip of the Iceberg!!
Cases Pending/Decided since
the Introduction of the Act
11th October
A judge stopped a trial because it was reported that a juror made a racist remark
in a case in which the defendants were of Asian origin.
16th October
Six rural families have launched a legal challenge against fuel taxes said to
discriminate against them they argue that the government's fuel tax policy discriminates
against them because they are dependent on cars.
18th October
Philip Garden, a prisoner serving life for murder has issued proceedings before
an employment tribunal to claim the national minimum wage, proper holiday entitlement
and other full-time workers' benefits. He is also demanding a written contract
of employment.
20th October
Thomas Minogue, from Dunfermline has asked the court in which he is appearing
for theft to make it known to him whether the presiding judge was a free mason.
22nd October
Testing employees randomly for evidence of drug abuse was not a breach of their
rights to privacy under article 8 of the Human Rights Act. The employer was
a large transport undertaking, where the public interest was clear.
25th October
New regulations giving employers sweeping powers to monitor their workers' e-mails
and internet activity. Many campaigners believe they directly contravene the
right to privacy at work.
26th October
The High court have held that the withdrawing of medical treatment to those
in a persistent vegetative state does not breach Article 2. .
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