Struck Out by Renton David.;

Author:Renton, David.; [Renton, David]
Language: eng
Format: epub
ISBN: 9781849646567
Publisher: Book Network Int'l Limited trading as NBN International (NBNi)

6

Human Rights Decisions in the Tribunal

I’m an Employment Lawyer, What has the Human Rights Act done for me? Not much, yet.1

Moral righteousness is insufficient to win a legal point in the courtroom.2

Over the past ten years, the Tribunal has seen a concerted attempt by several lawyers, often claimant representatives, to develop a culture of human rights-sensitive decision making. In assessing the extent to which this attempt has succeeded, it is important to have a realistic measure of success. Human rights have been directly enforceable in the UK only since 2 October 2000, when the Human Rights Act 1998 (‘HRA’) came into effect. Section 2 of the Act provides that ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights ... .’ Section 3 of the Act provides ‘So far as it is possible, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights ... .’ Convention rights are rights under the European Convention of Human Rights, as listed in Table 6.1.

The significance of section 3 of the HRA is that ‘legislation’ means all legislation, in whatever area. Precisely because Convention rights are very widely drawn, it is hard to think of any area of law where the HRA has made no difference, and there has not been at least some attempt to use the Act to have legislation read dynamically. That said, it is equally clear that in no area of law has the HRA completely reversed all that was previously fixed. The European Convention was drafted at the end of the Second World War, very largely by British lawyers infused with a sense of the virtues of the common law tradition, and seeking to impose its habits in place of the old legal systems of the former fascist states.3 The return to the UK of familiar concepts, albeit with new labels, was never likely to revolutionise our law. Moreover, the interpretation of the HRA has been left to a cadre of judges who whether out of timidity or from a realistic sense of the unattractiveness of judicial intervention overturning laws made by democratic parliaments, have tried to avoid ushering in a new era of judicial creativity. The HRA was never going to change all employment law, neither was it going to leave everything exactly as it was before.

Table 6.1 Principal rights listed under the European Convention of Human Rights4

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