will continue to have effect for the period of the transition. If there is no transition period, EU legislation is frozen at the leaving date, but interpretation of the retained and frozen EU law will be for UK courts rather than the European Court of Justice. Precedents established by that court will only be able to be overruled by the Supreme Court, though at time of writing there is a suggestion that new legislation could give the courts below the power to depart from EU court rulings.
After withdrawal the UK will be free to change or modify any laws derived from the EU, including health and safety, working time, environmental and equal treatment directives. Free movement of labour will no longer apply, so EU citizens will lose the automatic right to enter and work in the UK and UK citizens will lose the equivalent right to migrate to EU Member States. Amendments to UK legislation can, in many cases, be made by statutory instrument rather than primary legislation if they relate to matters of detail rather than fundamental changes of policy. The UK will no longer be bound by EU directives or regulations coming into force after withdrawal and will be able to disregard subsequent decisions of the European Court of Justice, though it is likely that UK courts will regard them as persuasive.
The European Convention on Human Rights and the Human Rights Act 1998
The Council of Europe was established at the end of World War II, before the European Union. It now has 47 Member States. Though several nations are members of both, the two bodies are quite separate. The European Convention on Human Rights and Fundamental Freedoms is a treaty of the Council of Europe, to which the UK is a signatory, in fact one of the founding members. It creates the European Court of Human Rights. The European Court in Luxembourg (the Court of Justice of the European Union) must not be confused with the European Court of Human Rights in Strasbourg, France. Decisions of the Strasbourg Court are not directly enforceable in the UK, though they carry considerable moral and political influence.
Although the UK was a prime mover in the creation of the Human Rights Convention, the impetus for which was the horror of what had been done to the Jews in Germany under the Third Reich, the British government for a number of years was of the view that it was unnecessary to give UK citizens the right to petition the Strasbourg court, since everyone knew that the UK was above reproach. In 1966 it was accepted that this was not necessarily the case and that British citizens should be given the right to appeal to the Human Rights Court where they were dissatisfied with the lack of a remedy from the domestic courts, and for 20 years this was the ultimate source of complaint for those who were dissatisfied with British justice. Because there was no internal procedure to challenge a decision as contrary to the Human Rights Convention, a disproportionate number of claims was made to the Human Rights Court by British citizens.
The Labour government elected in 1997 declared that the UK would incorporate the Convention on Human Rights into UK law and this was done by means of the Human Rights Act 1998, which came into force fully in 2000. The Act preserves the sovereignty of the Westminster and Scottish Parliaments. In the last resort, an Act of Parliament can lawfully deprive British citizens of their rights under the Convention. However, Parliament, and the courts in interpreting legislation, are obliged as far as possible to comply with the Convention. Thus, a decision of the UK Parliament to pass legislation which conflicts with the Convention would be a deliberate decision that the interests of this country override the Human Rights Convention. In such an unlikely case the Strasbourg court and the other members of the Council of Europe might make representations, and there is the possibility that the UK might even be expelled from membership of the Council of Europe. The higher courts are given power by the Act to make a declaration of incompatibility between legislation and the Convention. This happens only rarely, but when it does there is obviously pressure on the legislature to change the law. One example is the ruling by the House of Lords that persons suspected of terrorist offences may not be imprisoned indefinitely without trial A(FC) v. Secretary of State for the Home Department (2004). In 2009 the House of Lords made a declaration that the procedure of provisional listing by the Secretary of State for Health under the Care Standards Act 2000 of care workers considered unsuitable to work with vulnerable adults was contrary to Article 6 of the European Convention. Mrs Wright is a registered nurse. She was dismissed for gross misconduct in November 2003 from her job in a care home. She was provisionally placed on the ‘unsuitable’ list in February 2005, but eventually, many months later, her name was removed from the list after an appeal to the Care Standards Tribunal. During this period she could not be lawfully employed in a care home. Article 6 provides that in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The House of Lords decided that the power of the Secretary of State to place a name on the provisional list without the individual being able to make representations as to her innocence was contrary to Article 6. Although in due course an appeal could be heard by the Care Standards Tribunal, in the interim the nurse was in limbo and permanent damage might be done to her reputation and career. She should be entitled to a hearing before her name could be placed on the list, other than in a case where there was an urgent need to prevent harm to patients (R (on the application of Wright) v. Secretary of State for Health (2009)). The listing of those deemed unsuitable to work with vulnerable adults was transferred to procedures created by the Safeguarding Vulnerable Groups Act 2006, but the principles laid down by the House of Lords in the Wright case are of general application.
The rights under the Convention can only be enforced through UK courts directly against public authorities. These include the civil service, local authorities, NHS bodies and police authorities. Since courts and tribunals are public authorities, they must interpret existing and future legislation, and develop the common law, in conformity with the Convention wherever possible. They must have regard to Strasbourg case law. While the employees of public authorities can sue the employer directly for a breach, employees in the private sector have to take a more roundabout route. For example, an employee claiming unfair dismissal will be able to argue that conduct by the employer which breaches the Convention must by definition be unfair. Also, the government has a duty to protect its citizens by law from invasions of their human rights by a private employer.
Not all rights under the Convention are absolute, and it provides a number of acceptable reasons for restricting the rights of the citizen. For example, the right to freedom of expression in Article 10 includes the right to wear whatever clothes and hair styles the individual chooses, but the employer is entitled to demand outfits which are decent, do not constitute a health and safety risk, and do not damage the employer’s image. The right to freedom of religion and belief in Article 9 may be limited by the employer’s reasonable demands. For example, in Ahmad v. United Kingdom (1981) a Muslim schoolteacher was held not to have the right to take Friday afternoons off to attend the mosque. The employer had offered to set aside a room in the school where he could pray, or alternatively to give him a four day a week contract. In a nominally Christian country those from other faiths must to some extent conform with the prevailing customs. However, employers are expected to do what is reasonably practicable to accommodate them. Legislation has been passed to allow Sikhs not to wear hard hats in most places of work (Deregulation Act 2015). Although the prohibition of beards for reasons of hygiene may be justified when the employee is dealing with food, it would be necessary for an employer to show that suitable protective clothing would not adequately control the risk (Chapter 8).
The Convention approach is to decide whether a particular qualification of a right is proportionate. The test of proportionality also contains within it its own concept of procedural fairness. An infringement of a qualified right is much less likely to be a proportionate response to a legitimate aim if the person affected by the action was not consulted or not given a right to a hearing.
Inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s rights.
(Soering v. UK (1989))
There is a ‘margin of appreciation’, that is each state