© 1998 by Industrial Law Society
The Human Rights Act and Labour Law
* Professor Public Law, King's College, London. I wish to acknowledge the generous advice and assistance received from my colleague Robert Wintemute in the preparation of this article. I have also enjoyed the considerable benefit of conversations with Akiko Ejima, Conor Gearty and Stephanie Palmer. The usual disclaimer applies, with particular emphasis in this case.
The Human Rights Act 1998 implements the Government's manifesto commitment to incorporate the European Convention on Human Rights into domestic law. Because of the radical manner of implementation, it is widely believed that the implications of the Act will be far-reaching, and that no field of legal practice will be unaffected. The Act operates principally by imposing a duty on the courts to interpret legislation so far as possible to give effect to Convention rights, and by providing that it shall be unlawful for public authorities to act in a way which is incompatible with them. But, so far as labour law is concerned, it is argued in this article that, although the Act may help to filt some of the gaps in the framework of legal protection at the workplace, the overall impact may be quite limited. This is partly because of the narrow range of employment-related issues to which Convention rights apply, but also because the Act itself provides only limited opportunities for direct or indirect enforcement by workers who claim to be victims of a breach by their employer. The impact of the duty on the courts to interpret legislation in a manner that gives effect to Convention rights is likely to be diminished by the narrow interpretation of these rights by the Strasbourg authorities (and by the domestic courts when the occasion has arisen pre-incorporation), as well as by the equivocal nature of the rights themselves. Incorporation is no substitute for carefully tailored legislation, and raises questions about obligations under other international treaties in the social field, including the Council of Europe's Social Charter.