Castan Centre for Human Rights Law

"The Case for Social Rights"

Professor Keith Ewing

1 Introductory
The case against entrenched bills of rights is strong and compelling, and has been cogently made by many authors drawing on the experiences of different countries. Yet it remains an unalterable truth that no country with a bill of rights has given it up, and none is likely to. Many countries because of war or revolution, or in the optimism born of independence, have discarded old constitutional clothes for new ones: but all have retained their commitment to or have introduced entrenched bills of rights. While in some cases this may have been as a result of external pressure by a victor in war or by a former colonial power, political maturity has not led to any desire in these countries for constitutional change of a kind which would lead them to live without entrenched rights. And not only is there no example of bills of rights being discarded, history reveals yet another truth: this is a movement which is growing. It was not post war rebuilding, or the 1989 revolutions, or the ending of apartheid, which led to the entrenchment (quasi or otherwise) since 1982 of constitutional rights in Canada, New Zealand, Sweden or the United Kingdom. But it is not only at national level that we can point to the extraordinary growth of the faith in rights. A highly visible indicator of what is a global trend is the EU Charter of Fundamental Rights concluded at Nice in December 2000. No one knows where the debates about the legal status and scope of this particular document will end.

These developments - which cannot be ignored - present a real difficulty for scholars and activists who are committed to the principle of self government in a community of equals. The constitutional reformers of the 19th century were convinced that this would be achieved by universal suffrage, which would also help create the conditions of equality in which popular sovereignty could flourish. But these ambitions are frustrated by entrenched rights, as well as other constitutional arrangements which in a number of ways undermine the ambitions of early constitutional activists for political equality in a community based upon the principle of popular sovereignty. A fault-line thus runs through modern liberal democracies: democracy presumes a system of self government in a community of equals which liberal democratic regimes have failed to create and indeed have erected constitutional barriers to prevent. Put another way, political rights require a framework of social rights if the former are to be of universal application, yet political rights impede the development of social rights. This paper canvasses the counter - intuitive and paradoxical position for someone opposed to the constitutional entrenchment of rights, namely that the entrenchment of rights is incomplete without more rights: social and economic rights to complement civil and political rights.

2 What are Social Rights?
The first issue for examination is to determine what is meant by 'social rights'. Social rights complement civil and political rights, and are to be found expressed in a number of international treaties and national constitutions. At international level, the main instruments are the International Covenant on Economic, Social and Cultural Rights of 1966, complementing the International Covenant on Civil and Political Rights of the same year. Also at international level are the conventions of the International Labour Organisation which advised us in the Declaration of Philadelphia in 1944 with extraordinary prescience that 'poverty anywhere constitutes a danger to prosperity everywhere', and also that

the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare.1

At regional level important instruments include the Council of Europe's Social Charter of 18 October 1961 and its expanded Revised Social Charter of 3 May 1996, these complementing the European Convention on Human Rights by which they are overshadowed. To these must now be added the European Union's Charter of Fundamental Rights concluded at Nice in December 2000, in many ways a path breaking document which reflects European national constitutions by including in the same text both civil and political rights on the one hand, and social and economic rights on the other, and for the time being conferring on the latter the same legal status as the former.

But this only tells us where to find social rights; it does not tell us what they do or what they are for. Here we find that different texts make different provision, with matters addressed in one text not covered by another. But this is not the place to draw comparisons between international treaties or to compare these treaties with the national constitutions of countries such as Italy, France or Spain, far less to highlights strengths and weaknesses of rival conceptions. Our immediate concern is simply to identify some core themes and goals to which these different texts are addressed. To this end we can identify at least two different kinds of social rights, a distinction which becomes important when the contested question of the justiciability of social rights is considered. The starting point then is what we may refer to as substantive rights; substantive in the sense that they are designed to ensure that a people's basic needs are met, and perhaps also to ensure that there is a fair distribution of resources in a particular community. Unlike civil and political rights which generally (though not necessarily exclusively) confer rights which are protected from violation by the State, social and economic rights are altogether more wide ranging and far reaching, insofar as they confer rights which may be exercised against the bearers of private power, as well as by the State.

Social rights in this sense cover potentially the whole range of the citizen's social experience: education; health care; housing; work; income security during periods of interruption from work; and income security after retirement from work. The purpose of substantive social rights is to guarantee not only that provision will be made to deal with these different matters; but also by the introduction of minimum standards to regulate the terms on which that provision is made in the first place. So it is not enough for the State to seek to guarantee a right to work (as do the ICESCR, and the Council of Europe's Social Charter of 18 October 1961, and its Revised Social Charter of 3 May 1996), but necessary also to recognise the right to just conditions of work (including the regulation of working time); the right to safe and healthy working conditions; and the right to a fair remuneration (as again do the ICESCR and the Social Charters of the Council of Europe). And as expectations rise and values adapt, so these core rights expand: in the case of the Revised Social Charter, we now have new rights relating to protection in cases of termination of employment; dignity at work (addressed mainly at sexual harassment); and the needs of workers with family responsibilities.

Alongside these social rights of a substantive nature are what we might refer to as procedural rights. These are rights which facilitate participation in the social sphere where other rule making institutions operate. This is one of the virtues - perhaps the principal virtue - of social rights, as identified by the French legal philosopher Georges Gurvitch who wrote of the need for a Bill of Social Rights to supplement the Bill of Political Rights. In the view of Gurvitch:

To supplement the Bill of Political Rights with a Bill of Social Rights means to proclaim the rights of workers, of consumers, and of common men as groups and as individuals to take part effectively in all aspects of life and of advancing civilization, in creative work, in security, in well-being, in education and culture, as well as to participate actively in all possible manifestations of jural autonomy, of democratic supervision and control by those concerned, of self - government and of judicial procedure. The Bill of Social Rights means (within the sphere of integration and participation) jural negation of all exploitation and domination, of all arbitrary power, of all inequality, of all unjustified limitation of liberty of groups, collectivities, and individuals. It means also the proclamation of rights of individuals, groups and collectivities to enjoy a pluralistic organisation which alone under present conditions is able to save and to guarantee human freedom.2

The key words here are 'integration' and 'participation', with the emphasis on the integrative function of social rights. Also fundamentally important is the sense that human rights are not necessarily individual rights, but are rights for empowering groups which may act collectively. So much is clear from Gurvitch's claim that

the Social Rights proclaimed by the new bills must be rights of participation by groups and individuals in the autonomous and self - governing wholes in which they are integrated, rights guaranteeing the democratic character of these latter: rights of worker, consumer, and common man to participate in the national community and to co-operate within it on equal footing with the citizen; right of supervision and control over any power which arises, under whatever form, in any group or in any collectivity in which the people concerned are integrated; rights of all participants to make appeals to one group or collectivity against another group or collectivity in order to protect liberty whenever it becomes menaced by a whole; rights of freedom for groups, within groups, and among the plurality of groups.3

These rights of participation take place in different ways at different levels. There is the right through autonomous associations to take part in the making of rules which affect the social sphere: the right of the citizen as worker to take part through his or her trade union in making of substantive social rights. But there is also the right of the worker or the consumer or the student to take part in the making of rules in the social sphere which govern enterprises or institutions. In the workplace this is recognised in the right of workers to form and join trade unions, not just as a desirable end in itself; but as a means of underpinning the right to engage in collective bargaining with their employer through the trade union to determine the rules by which the workplace is to be governed. Reinforcing this fundamental procedural right designed to expand the frontiers of rights of participation from the public to the private sphere is the right to strike, without which it is widely recognised collective bargaining cannot take place.4 Although procedural rights are important as a means of ensuring participation in the social sphere, we should not overlook the importance of such participation as a means of raising standards and of enhancing the quality of substantive rights: organised workers are generally better paid than those who are unorganised.

3 Social Rights and Constitutional Rights
It is one thing to argue for the importance of social rights, but another to say that they should have an elevated status and that they should be regarded as fundamental constitutional rights, whatever that may mean. Yet there are a number of arguments which can be made to this effect, though perhaps the most persuasive is that made by the national governments which together form the international institutions which are responsible for the different social rights treaties to which we have referred. The argument is based on the assertion of the indivisibility of human rights that we find rehearsed in the preamble to the Revised Social Charter of the Council of Europe.5 But what does this mean? In what sense are civil and political rights on the one hand and social and economic rights on the other indivisible? The arguments are simple and well known, which is not to say that they ought not to be rehearsed. There can be no political liberty without adequate social provision, and there can be no political equality without a measure of social equality. Indeed it may be said that social rights are 'logically prior' to political rights, for reasons which were expressed as long ago as 1883 following the death of a well known German philosopher: 'mankind must first of all eat, drink, have shelter and clothing before it can pursue politics, science, art [or religion]'.

Drawing on the idea of indivisibility, there are perhaps two arguments of principle which direct us to the conclusion that social rights are essential constitutional rights. The first draws upon the constitutional principle of liberty, which as already suggested does not operate in a social vacuum. Social rights provide the means for that liberty to be exercised in the public sphere, and provide the basis for its application in the private sphere, including the workplace where many people still spend too much time. So far as the former is concerned, it is true that there are liberties which do not rely on the means available to the citizen: these include the liberty from arbitrary arrest, search and seizure; and perhaps also liberty of conscience and religion. But even in these cases the point should not be overblown. For while it is true that the enjoyment of these rights is available to all without means, it is also the case that a want of means will make it difficult if not impossible to protect these rights when they are violated by the State. There is also evidence to suggest that those vulnerable because of a lack of means are more likely to be violated by public officials whom they are unable readily to call to account by normal legal procedures.

But in other cases - liberty of expression and the liberty to engage in the political process and to influence the content of the rules by which we are governed - it is not so clear. In these latter cases, there is a need for a minimum social infrastructure before we can say that these are liberties of universal application, and before we can say that we all have an equal right to liberty. We may have the liberty to say what we think, but without education we may have no means of expressing these thoughts; and without means we have no opportunity to reach an audience to hear what we have to say. We may also have the liberty to stand for election to Parliament or to other public bodies, but without means we have no opportunity to promote our candidature; we might as well stay at home. Similarly, it has been said about low electoral turnouts which are one of the plagues of contemporary democracy that 'If your life is struggling to survive . . . voting is not a priority'.6 We may take this a step further and say that 'If your life is struggling to survive . . . voting [and other political activity] is not an opportunity'. Those with no means, with no home, with no time because of excessive hours of work, or with chronic illness are unlikely to play a full and active part in the government of the community to which they belong.

The other fundamental principle of the constitution is the constitutional principle of equality. This is a principle which takes many different forms in this context. For the constitutional lawyer it clearly means legal equality, in the sense expressed by Dicey that we are all equal before the law, and that no one by virtue of rank or position should be above the law.7 But this is a rather formal equality, for we do not have equal rights to be protected by the law, or equal access to the law, unless we have equality of means. Otherwise some people's rights are inevitably more equal than others. A second dimension in which we encounter equality as a constitutional principle may be described as political equality, in the sense that we all have the right to participate in the political process and to seek to influence the course of political debate. This is not to say that we absolute equality, but we nevertheless find this principle expressed in a universal suffrage in which we all have one vote, in the desire to create parliamentary constituencies of roughly equal size, and in the spending limits which we impose on candidates and political parties in elections,8 better to ensure that elected office is not the exclusive preserve of the wealthy and better to ensure that those with excess means do not have an unfair advantage in a campaign.

But there is a third dimension to the principle of equality as a constitutional principle. This is what may be described as social or economic equality. Social equality is a principle which is hotly contested. Yet it is self - evident that if political equality is to be more than a slogan, we must again attend to the social infrastructure. But here the need to do so is more urgent, for what is contemplated is not simply (sic) an equal right to liberty, which may require a minimum social infrastructure; but rather a right to equal liberty, which may require something more, in the sense of measures which have a greater equalising effect. Social equality does not mean that there should be full equality between citizens on social matters, any more than equality of political opportunity can guarantee equality of political influence, or equality of electoral opportunity. But it does at least mean that equalising measures and the elimination of great disparities of condition are essential steps in a society which lays claim to be democratic. We need only compare the relative influence of newspaper proprietors such as Rupert Murdoch and Conrad Black on the one hand ('fat cats'), with the typical recipient of social welfare on the other ('little people'), to see in stark practical terms the extent to which political influence and economic power are closely inter-twined.

4 Social Rights and Legislation
Although it might thus be argued that social rights play an essential part as a precondition of democratic government, does it follow that such rights should be constitutionally entrenched? In an era of universal suffrage, why cannot such rights be secured and retained by ordinary legislation, which would be subject to the normal vagaries of the democratic process? Is it not deeply undemocratic to entrench rights of this kind and to protect them from the ordinary democratic process? These are weighty considerations, with which it is easy to agree. But one problem which arises relates to the difficulties caused by the informal constitutional restructuring which is taking place alongside the British government's highly publicised programme of reform of the formal constitution. Many will be aware of devolution, House of Lords reform, and the incorporation of the European Convention on Human Rights. But less highly publicised are the constitutional consequences of the consciously closer working relationships between government and the business community, which has seen the commercial penetration of party, Parliament, and policy development itself.9 Although not a barrier to social legislation, there are clear institutional obstacles emerging within the constitution which call into question the political equality of a sovereign people, and which make social rights more difficult to secure.

It starts with the political parties. Both our main political parties portray themselves as the parties of business, and to accept donations from businessmen. Unlike much of the rest of Europe, Britain operates a private system of party funding: the role of the State in funding the parties is limited and minimal. There are no annual subventions from public funds to relieve the parties of dependence on wealthy benefactors, though there is some support to help the Opposition parties in particular. This is how the system remains, despite the additional financial burdens placed on the parties by devolution, and despite the comprehensive reforms introduced by the Political Parties, Elections and Referendums Act 2000. The Act introduces the mandatory disclosure of political donations, a ban on foreign donations, and a requirement that corporations consult their shareholders for authority to make political donations or incur political expenditures. Although the Act also imposes spending limits on political parties and third parties during election campaigns, it does not also impose a cap on contributions.10 British political parties are heavily dependent on large donations from wealthy individuals: before the election in 2001, one businessman donated £5m to the Conservative Party; while another two donated £2m each to the Labour Party.

The connections move from party to Parliament. One of the major changes to the formal constitution since 1997 was the removal of most of the hereditary peers by the House of Lords Act 1999. The House of Lords is now an almost wholly appointed chamber, with no elected members. Apart from removing all but 90 of the hereditary peers,11 the new government has also been responsible for a huge increase in the appointment of the number of life peers in that time, and indeed the current Prime Minister has appointed more life peers than anyone else since the Life Peerages Act 1958. There are now 525 life peers, many of whom were appointed since 1997, in some respects perfectly understandably in order to redress the political imbalance of the House. Indeed it is still the case that the Conservative Party is the largest party in the House of Lords, with 232 of the 616 members.12 The main concern, however, is that of those appointed by the Prime Minister since 1997, many have a business background, with business peers taking the Labour whip including senior executives associated with BP, GEC plc, Northern Foods, Marks and Spencer and Sainsbury. Other appointments not taking the Labour whip have close associations with Ford Motor Co and Pearson, a multinational publisher.13 Equally significant is the fact that the House of Lords Appointments Commission established in 2000 to advise the Prime Minister on the appointment of independent members is chaired by Lord Stevenson, appointed by the current Prime Minister and chairman of Pearson.

But although these are important developments, neither party nor Parliament is responsible for public policy: this is the function of government. Here too we find overlapping relationships, with business interests playing an increasing role since 1997 in the development of government policy. This has been done in a number of ways, including the secondment of business people from the private sector, but also through the proliferation of task forces, which play an important if neglected part in the informal constitution. A parliamentary written answer in November 1999 revealed a list of 148 review groups and task forces, established in many departments and covering a wide range of issues. They included the Modernising Government Quality Schemes Task Force (Cabinet Office), the Creative Industries Task Force (Department for Culture, Media and Sport), the School Standard Task Force (Department for Education and Employment), the Human Rights Task Force (Home Office) and the Coronary Disease Task Force (Scottish Executive).14 Not all included ministers, but most had civil servants and people form the 'private sector' among their members. Indeed some were chaired by corporate executives. The Committee on Standards in Public Life in 2000 echoed the concern of others that Task Forces fall outside the scope of the procedures relating to public appointments, even though their purpose may be to bring 'external advice to bear on specific policy issues'.15

It is perhaps a small step from playing a part in the development of policy to playing a part in directing the policy agenda. But this has been the latest step. According to a press announcement on 22 November 2001, three business executives are to be invited to sit on a seven strong strategy board to be chaired by the Secretary of State for Trade and Industry, in 'an attempt to make Whitehall more business friendly'.16 The department's work is to be divided into four areas: enterprise, innovation, competitiveness and core services; and each of these areas will have its own strategic board plus 'a bank of private sector advisers'. According to the government, the aim is to make the department 'truly focused on its customers' needs'. These customers it seems are the business community, perhaps in itself a curious kind of relationship for government to cultivate with those who might otherwise be the subjects of regulation. Nevertheless these same business interests were 'delighted by the shake - up, saying that it should give the DTI a louder voice and business more clout across government'. For as was pointed out, 'the scale of involvement of those with commercial interests is unprecedented', even if 'use of outside businessmen is not new'. Predictably the announcement was condemned by trade union and consumer groups whose interests also fall within the remit of the department. Denied a seat on the strategic board, non profit making groups will have to make do with a place on the second - tier boards.

5 Social Rights and the Failure of Legislation
It is not suggested that any of these developments are a total barrier to social legislation. Indeed since 1997 a number of major new initiatives have been taken, including the introduction of a national minimum wage on the one hand and statutory trade union recognition procedures on the other. But part of the hostility of organised labour to the most recent of these changes is the realisation that the bar has been raised still higher. Business interests dominate the channels of influence and occupy a commanding position on the battleground of ideas. Yet the problem with the legislative process is not simply one of institutional capture; it is also one of institutional failure. Legislation simply does not work as a means of securing and preserving even the most minimum standards set by international treaties. While this might be excusable on the part of developing nations or transitional democracies, it is wholly inexcusable when those responsible are advanced industrialised nations who for the most part have voluntarily agreed to be bound by the minimum standards with which they now ostentatiously disregard. As global and national inequalities grow,17 this is an epidemic from which few countries are immune, though it has to be said that the social democracies of continental Europe so far have a degree of resistance which is not evident in countries such as Australia,18 the United Kingdom, or the United States.19

It is clearly not possible to reveal the full extent of legislative failure in advanced liberal democracies in relation to social rights. We can continue with the United Kingdom for illustrative purposes, and examine its recent record under the Council of Europe's Social Charter of 18 October 1961.20 This is the sibling of the much better known European Convention on Human Rights which was incorporated into British domestic law by the Human Rights Act 1998. Britain has accepted 60 of the Charter's 72 paragraphs (one of the lowest among EU member states; only Denmark has accepted fewer), which fall into two categories. The first are what are referred to disarmingly as the 'hard core' paragraphs These are articles 1 (right to work), 5 (right to organise), 6 (right to bargain collectively), 12 (right to social security), 13 (right to social and medical assistance), 16 (right of the family to social, legal and economic protection), and 19 (right of migrant workers and their families to protection and assistance). The hard core articles constitute in total 28 paragraphs, of which the UK has agreed to be bound by 25. All these provisions were subject to supervision in the 15th cycle which was completed in 2001.

The other category are the 'non hard core' provisions, which make up the bulk of the Charter. (There are also substantive provisions in the Additional Protocol, but these need not detain us as it has the UK has not ratified it either.) Not all of the non hard core provisions were the subject of examination in the 15th cycle which was confined to articles 7 (the rights of children and young persons to protection); 8 (the rights of working women to protection); 11 (the right to protection of health); 14 (the right to benefit from social welfare services); 17 (the right of mothers and children to social and economic protection); and 18 (the right to engage in gainful occupation in the territory of other Contracting States). These different provisions are contained in 24 separate paragraphs, of which the United Kingdom has accepted 17. This means that the United Kingdom was bound by 42 of the 52 provisions which were subject to supervision in the 15th cycle. Supervision mirrors the ILO procedures, with the Social Charter supervised by the Social Rights Committee of the Council of Europe (to which Collective Complaints may now be made in relation to those countries which have ratified the Collective Complaints Protocol of 1995; these countries do not include the United Kingdom).

To recap (for emphasis): Britain is bound by 60 of the 72 numbered paragraphs in the Charter. In this cycle of supervision 42 of these 60 paragraphs were examined, and it was found that Britain was in full compliance with only 19. The Committee was unsure about another 8 (because of a lack of information), but found that Britain was in breach of 14 of these obligations. So far as the hard core articles are concerned, the Committee found that the United Kingdom complies with only 10 of the 25 paragraphs with which we have agreed to be bound. In the case of 4 paragraphs, the Committee was unable to reach a conclusion without further information, and in the case of 10 British law was found not to be in conformity with the Charter. Of the 17 non hard core articles examined, the Committee found that the UK had fulfilled 9 of its obligations; that in the case of 4 of the obligations the Committee needed more information to reach a conclusion; and that in the case of the remaining 4, 'the situation was not in compliance with the Charter'. This is worse than the 14th cycle of supervision when Britain was found to be in breach of 13 obligations.

The position is in some respects even worse than these bald figures otherwise suggest, for in some cases the breach of a numbered paragraph is for several reasons. So in the case of the right to organise in article 5 of the Social Charter, Britain was found to be in breach for 5 different reasons, and in the case of the right to strike in article 6(4) the failings are equally comprehensive. But it is not only freedom of association guarantees which are wanting. We are still said to have problems with forced labour (sanctions on striking seafarers) and child labour (the employment of children during school holidays and the failure to extend the minimum wage to the under 18s), in breach of articles 1(2), 7(3) and 7(5). The Committee also recorded breaches of articles 13 (1) and (4), 16 and 19(4). These deal respectively with the right to social and medical assistance, the right of the family to social, legal and economic protection, and the rights of migrant workers and their families. Reference should also be made to the breaches of article 8(1) (entitlement to at least 12 weeks paid maternity leave), breached on two grounds; and article 18(3) by which Contracting Parties undertake to 'liberalise, individually or collectively, regulations governing the employment of foreign workers'.

The Human Rights Act 1998
Evolving constitutional change is not only creating political barriers to social reform and the opportunity for progress in the direction of political equality. Among the important institutional reforms of recent times is the Human Rights Act 1998 which by incorporating the European Convention on Human Rights places new judicially enforceable restraints on popular sovereignty. The ECHR is concerned principally with what we might refer to as civil and political rights, or first generation rights. It deals with the right to life and prohibition against torture, slavery and forced labour; as well as the right to liberty and security of the person as well as the right to a fair trial and protection against retrospective criminal laws; and in addition the right to privacy, conscience and religion, expression, and association and assembly. The protocols provide protection for private property, parental choice in education, free elections, and the abolition of the death penalty. But there is no protection in practice for social rights, except incidentally for those with a vivid imagination and unbounded faith in the virtue of the courts.

In this way, social and economic rights are subordinated to the civil and political rights that we find incorporated into domestic law by the Human Rights Act. The former must yield to the latter. Yet at first blush the Act seems almost benign, for unlike many Bills of Rights it does not empower the courts to strike down an Act of Parliament.21 The courts are required simply to interpret legislation where possible consistently with the Convention (s 3), a duty which admittedly operates even where the construction in favour of Convention rights may not be the most obvious or the most reasonable construction.22 It is only where it is not possible to construe legislation in a manner which is consistent with Convention rights, that the High Court and superior courts (but not tribunals or inferior courts), after giving the Crown an opportunity to take part in the proceedings (s 5), may make a declaration of incompatibility (s 4(2)). But this 'measure of last resort' is stated not to be binding on the parties, and does not affect the validity or operation of primary legislation (s 4(6)). It has the effect only of inducing a political headache in government, which must decide whether or not to bring forward fresh legislation to remove the incompatibility.

The powers of the courts in relation to primary legislation are thus limited, and the courts at the highest levels have so far expressed considerable deference to the need to ensure that 'decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them', and on another occasion to 'the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies'.23 Yet the powers of the courts are not to be underestimated. The new rule of construction has been rightly criticised as significant limitation of parliament's sovereign will,24 which applies even where there is no ambiguity in legislation and which requires the courts to adopt an approach to construction 'which linguistically may appear strained'.25 One of the first casualties of the new power was legislation designed to exclude sexual history evidence in rape cases.26 And although it is true that a declaration of incompatibility does not affect the formal validity of legislation, it remains the case that a statute carrying such a declaration will be badly wounded, with the result that it would be difficult for a government to resist calls for amending legislation, just as it is currently difficult to resist legislation to implement a decision of the European Court of Human Rights.

The limited role of the Act in relation to legislation raises questions about precisely what it is the Act is designed to do. The answer lies in section 6 which provides that is unlawful for public authorities (including courts and tribunals) to act in a way which is incompatible with Convention rights. This means that government departments, local authorities and regulatory agencies must exercise their powers in manner which is consistent with Convention rights, unless primary legislation permits no other course of action.27 It is at this point that we encounter the possibility that the Act may not only be benign but that it may also be useful, to the extent that it may have an impact horizontally to regulate not only the exercise of State power, but also the exercise of private power. This possibility arises by the inclusion of the courts and tribunals within the definition of public authorities, which means that courts and tribunals must conduct their affairs in a way which is consistent with Convention rights (such as the right to a fair trial (art 6) and the right to freedom of expression (art 10)). But it means much more, for it applies also to the remedies which a court may order. So it would not be possible for a court to issue an injunction if to do would violate the Convention rights of the defendant; or to fail to issue an injunction if to do so would violate the Convention rights of the applicant.

In this way the Act may have implications for the common law and indeed for litigation between private parties. So although Convention rights are directly enforceable against only public authorities, it is impossible to rule out the likelihood that they could be enforced indirectly by one private party against another.28 This question - the so-called horizontal status of the Convention - has given risen to a great deal of confusion.29 The better view appears to be that (i) Convention rights may not be directly enforced by one private party against another; but that (ii) Convention rights may be relied upon in an established cause of action to extend the rights of either party. But any sense of triumph is diminished by the fact that in the most celebrated case so far, the Act was used effectively to settle a commercial dispute which seems far removed from the territory of human rights. In Douglas v Hello!,30 Michael Douglas and Catherine Zeta - Jones sought to restrain the publication of unauthorised photographs of their wedding, alleging that their privacy had been violated. Guided in part by the Human Rights Act the court accepted that there was now an enforceable right to privacy rooted in the equitable doctrine of breach of confidence. But the action failed, though not without the court asserting that it was not to be assumed that 'the law will never protect privacy which is being turned to commercial ends'.31

The Human Rights Act and the Role of Business
Douglas v Hello! is a fine metaphor for the Human Rights Act, though it would be a gross caricature to suggest that the Act has operated only as a tool in commercial law: as might be expected, it is the area of criminal law that its likely impact will be greatest.32 Nevertheless, Douglas v Hello! was a commercial dispute between two commercial newspaper rivals, one (OK!) which had bought the exclusive rights to the wedding photographs, and which had found its position undermined by an unauthorised photographer for the other (Hello!). The nature of this commercial rivalry was fully addressed by the court, with one of their number pointing out that, 'the major part of the claimant's privacy rights have become the subject of a commercial transaction: bluntly, they have been sold'. And as he continued, 'the dominant feature of the case is that by far the greatest part of the [plaintiff's] privacy has already been traded and falls to be protected, if at all, as a commodity in the hands of the third claimant'.33 But it is one thing for human rights to be commodified in this way in an unseemly spat between the vain and the greedy. Yet it is something quite different when the vain and the greedy resort to the Act not only to assert their position against another private party, but against the State itself. So we return to the question about the extent to which the Human Rights Act - despite its apparently benign form - erects democratic barriers to regulation and to the empowerment of the dispossessed.

The Human Rights Act applies to both natural and legal persons, a point which even commercial lawyers concede in not only 'odd' but 'objectionable'.34 Has it empowered the business community, and reinforced the economically powerful? In little over a year, it would be difficult to expect to find conclusive evidence of such an effect. Yet it is already the case that the Act is operating in two quite different ways to protect commercial interests. One is in a preventive capacity, as a chill on government action. One of the least investigated areas of the operation of the legislative process is the way in which democratic restraints are mobilised by special interests - briefed by the opinions of the most expensive counsel - to bully governments and civil servants into restraint and submission.35 This is a process which curiously has been encouraged by the provisions of the Human Rights Act which requires the government to declare on the face of all Bills introduced into Parliament whether or not they are compatible with the ECHR; and by the establishment of a powerful new joint parliamentary committee on human rights, one of the functions of which is to test these statements.36 It is not just the lobbyist armed with briefs who chills legislation: the Human Rights Act also sets known boundaries and restraints within which policy making can take place.

So where is the evidence? We can point to two examples which have been noticed: space precludes consideration of others.37 The first relates to the public ownership of Railtrack (the privatised company that owns the track on which the differently privately owned trains run). This is a preferred policy choice of many which was resisted by government because of the high cost of compensating shareholders which it was said the Human Rights Act required. Admittedly it is unclear whether this was an argument raised disingenuously or whether it was believed to be true. But it does not matter: the mere mention of the Act was enough to end the debate. Secondly there is the right of trade unions in a ballot of workers to determine whether the union should be recognised by an employer for the purposes of collective bargaining. Should the employer be entitled to be given the names and addresses of workers in the bargaining unit so that it might make contact outside working hours? According to ministers, not without violating the workers' right to privacy as protected by article 8 of the Convention.38 This is despite the fact that the Strasbourg authorities (to say nothing of the domestic courts) found there to be no breach of the same article by legislation requiring a trade union to provide an employer with the names of members to be included in a strike ballot required by legislation.39

These examples illustrate in different ways the chilling effect of the Human Rights Act on social policy initiatives: it has the capacity to restrict options, and the capacity to modify and impair initiatives. But what about its role in litigation? As might be expected, the Act imposes few burdens on business, and any attempt to use it in this way has been rebuffed. So despite the duty to interpret legislation consistently with the Convention, the Sex Discrimination Act 1975 is not to be read to apply to discrimination on the ground of sexuality as well as gender.40 And although legislation without precedent requiring pre-strike ballots imposes obligations which are 'onerous' and 'burdensome', to provide information which is misleading and incomplete, this cannot be said to be an 'oppressive or disproportionate' burden on the right to freedom of association, as protected by article 11.41 There is curiously one exception to this restraint on the part of the courts, with the newspaper industry now burdened by the protection of the right to privacy from publishing material about the sexual incontinence of a so far unknown football player,42 and the identity of a health care worker with aids.43 In these clashes between privacy rights and speech rights (with both having the same status), the former have prevailed:44 the irritation of the industry has led one frustrated tabloid editor to call for the repeal of the Act.45

But is there evidence of the Act being used by business to push back protective legislation, or to remove regulatory restraints? As already pointed out the courts have only limited powers in relation to legislation. Yet even here the declaration of incompatibility is to be used as a 'measure of last resort' which 'must be avoided unless it is plainly impossible to do so', as in the case where 'a clear limitation on convention rights is stated in terms'.46 At the time of writing there have been two cases in which this power has been known to have been used. In view of the way in which the higher courts have pumped up the new canon of construction, there may not be much need for many more. Nevertheless, the first of these cases related to mental health legislation,47 but the other poignantly related to the restraints on pawnbrokers, hardly a propitious start to the life of the Act, though one which has generated no publicity, ironic or otherwise. In Wilson v First County Trust Ltd,48 the Court of Appeal declared inadmissible the provisions of the Consumer Credit Act 1974 which prevented the pawnbroker from enforcing the security for a loan because a number of formalities required by the statute had not been complied with. Although this was a matter of 'social policy' rather than one of 'high constitutional principle',49 the denial of the pawnbroker's right of access to a court to enforce his rights, and the violation of his property rights could not be justified.

A Bill of Social Rights
What we have then is a system of government in which two key principles are being further eroded. Both the principle of popular sovereignty (through representative government) and the principle of political equality are being diminished by constitutional developments which draw the business community into the process of government and which gives the courts the power to challenge, if not formally veto, social legislation. How do we move forward? Returning to Gurvitch, there is a need 'to liberate the dynamic driving force of democratic principles from becoming petrified by retarding symbolic formulas, techniques and institutions crystallized at the end of the 18th century'. A 'rejuvenated democratic enthusiasm, a new democratic creative inspiration, a reinforced democratic faith', he continued, are needed 'in order to be able to rebuild the world of tomorrow on the basis of the highest democratic value - that of human liberty'. The strongest obstacle to democracy, wrote Gurvitch, was in the economic sphere where we find 'economic feudalism, private industrial autocracies and arbitrary technocratic powers'. True political democracy was not possible 'without parallel 'industrial', 'economic' and 'social' democracy, a necessary precondition of which was the elaboration, acceptance and realization of a Bill of Social Rights: 'a Bill of Rights of workers and consumers, complementing their rights as citizens and serving as a basis for economic democracy'.50

A survey of the constitutional arrangements of a number of western European social democracies reveals that many if not most have embraced ideas of this nature.51 These constitutional arrangements fall into two categories, the first providing clearly that social rights are constitutional rights, with Italy and Spain perhaps making the most extensive provision. In the case of Italy, a title in the Constitution headed 'Economic Relations' deals with matters as diverse as vocational training (article 35); an entitlement to wages 'sufficient to protect [the worker] and his family in a free and dignified existence' (article 36); working time (including holiday pay) (article 37); equal rights for women and entitlement to 'the same wages for the same work as male labour' (article 37); and 'freedom in the organisation of trade unions' (article 39).52 In similar terms the Spanish constitution provides that all citizens have the right to 'sufficient remuneration for the satisfaction of their needs and those of their families' and that 'in no circumstances may they be discriminated against on account of their sex' (article 35). There is also protection for collective bargaining and the right to strike, though the law must include safeguards for essential services (article 37). Protection is made too for 'a public social security system' (article 41); the protection of health (article 43); and 'decent and adequate housing' (article 47).

It is true that not all European states go anywhere near as far as this pair. Nevertheless in France the Preamble to the Constitution of the Fourth Republic (founded on 'political, economic and social principles') is incorporated into the Constitution of the Fifth Republic. The former recognises the right to work, guarantees health care, material security, rest, leisure and social security, and promises equal access to education, professional training and culture. There is also a constitutional right to join a trade union of one's choice and to take part in the activities of the union (though few it seems do either, with France having the lowest level of unionisation in Europe). This is reinforced by the express constitutional recognition of the right to strike, albeit that it is a right which is heavily qualified in the sense that it is to be 'exercised within the framework of the laws' which regulate its use.53 In Germany too - where there is otherwise little constitutional protection of social rights - the Constitutional Court has carved a right to strike (and determined its boundaries) from the constitutional guarantee that everyone has 'the right to form associations, to safeguard and improve working conditions'.54 This protects both the individual worker and the trade union in its organisational capacity.

These examples contrast with the position in those countries which cast their constitutional arrangements in the form of duties. This is a feature of the Scandinavian jurisdictions in particular, though the from is not confined to such countries. In Norway, the Constitution provides by article 110 that it is 'the responsibility of the authorities of the State to create conditions enabling every person capable of work to earn a living by his work'. According to one authority, this provides a 'legal obligation' to do 'what is necessary to ensure full employment, by presenting 'an injunction to the State to pursue an active employment policy when this is necessary to avoid unemployment': it implies a prohibition against unemployment being used as a n instrument of economic policy'.55 The same article imposes another duty by providing that 'specific provisions concerning the right of employees to co-determination at their workplace shall be laid down by law'. Similar obligations on public authorities are to be found in Denmark where it is provided that 'in order to advance the public weal efforts should be made to afford work to every able bodied citizen on terms that will secure his existence, though it is also provided in the same article that any person unable to support himself (sic) or his dependants shall be 'entitled to receive public assistance, provided that he shall comply with the obligations imposed by statute in such respect'.

The Swedish constitution provides in general terms that 'the personal, economic and cultural welfare of the individual shall be fundamental aims of public activity', and then specifies particular duties of the public administration 'to secure the right to work, housing and education, and to promote social care and social security and a good living environment'. A similar approach is to be found in the Netherlands where it is stated to be the 'concern' of the authorities 'to promote the provision of sufficient employment' (article 19), 'to secure the means of subsistence of the population and to achieve the distribution of wealth' (article 20), and to 'provide sufficient living accommodation' (article 22). In the Swedish context these duties of the State are complemented by the right to freedom of association and an express provision that 'any trade union or employer or association of employers shall be entitled to take strike or lock-out action or any similar measure unless otherwise provided by law or arising out of an agreement'. In the Netherlands other social rights have been introduced through the direct enforceability of provisions of the Council of Europe's Social Charter of 18 October 1961. In one particularly important case in 1986 it was held that the guarantees of the right to strike in article 6(4) of the Charter could be directly enforced in the Dutch courts.56

The Human Rights Act 1998 as a Template
The enforcement of article 6(4) of the Council of Europe's Social Charter of 18 October 1961 raises interesting questions about whether the Social Charter could be used as a basis for the incorporation of the Social Charter into British law. The Revised Social Charter proclaims the indivisibility of human rights; the Social Charters are the indivisible siblings of the ECHR, also a treaty of the Council of Europe. As we have seen this is a perception which is recognised in other advanced European states, and also now by the European Union in the Charter of Fundamental Rights concluded at Nice in December 2000. As we have also seen, this wide ranging document also embraces both civil and political rights as well as social and economic rights, both with the same status, and each informed by the standards of other international treaties to which individual member states are party and from the authors of the Charter draw inspiration. The Charter currently applies only to the EU and its institutions, and to member states insofar as they are enforcing Community law. Yet in this way the Council of Europe's Social Charter is a potential source of restraint - albeit indirectly and collaterally - on British law. How could it be made more direct and universal in application?

In response to this question, the Human Rights Act provides an extraordinarily fortuitous precedent, not only because it attempts to preserve the sovereignty of Parliament, but also because it has a limited horizontal effect, and addresses relationships between private parties. As already indicated, so far this has added fresh arrows to the quivers of those aiming at commercial targets. But social rights are rather different: they are addressed at private power and seek to regulate its activities, as well as empowering those who bear such rights. But before dealing with this matter is greater detail, incorporation of the Social Charter along the same lines as the ECHR would mean that all legislation would have to be construed in a manner which is consistent with Charter rights. Herein of course lies a danger in the sense that the courts in the common law tradition are likely to read down social rights and to dilute their effect,57 even before any question of balancing social rights against property rights arises whenever there is a clash. But this is a problem which can be addressed by following the precedent of the Human Rights Act which by section 2 requires the domestic courts to have regard to - though be bound by - the jurisprudence of the European Court of Human Rights - in the construction of Convention rights.

The importance of such a canon of construction can be seen in the social field in cases such as Banks v Chief Adjudication Officer,58 a decision of the House of Lords in the neglected field of social security law (though there are a number of scholars whose important work keeps the subject alive as an intellectual discipline).59 In the Banks case social welfare legislation was construed to deny benefit to a special needs assistant in a local authority school for the periods of the school holidays when he was unpaid. The withholding of benefit was upheld by the highest court as a matter of statutory interpretation on the basis of a 3:2 majority, in the course of which one of the minority made a compelling case for the applicant, but also - perhaps unwittingly - a powerful case for an interpretive obligation of the kind proposed here. In the words of Lord Scott of Foscote:

Mr Banks' income from his employment as a special needs assistant was around £3,367 per annum. This is surely below poverty level. Mr Banks' attempts to supplement this inadequate income by working elsewhere in school holidays failed. This is not surprising. It is not easy to find short-term work. If school ancillary workers like Mr Banks are barred from claiming jobseeker's allowance by being treated as being engaged in work when in fact they are not, what are they to do? They can, I suppose, give up their work as ancillary workers and seek some form of alternative employment where they will not be caught by the construction of the regulations that will have trapped Mr Banks and, pending such re-employment, they can claim benefit. But how will schools and other educational establishments then attract ancillary workers? And if the ancillary work employment is still open to them their benefit claim may be barred on the ground that that employment is available to them and they are not actively seeking it. This is a 'poverty trap' sequence that the Social Security Act 1986 was intended to cure. If there had been some express provision in the regulations that made this result unavoidable, then your Lordships would be unable to avoid it.60

But in this case, Lord Scott held that such a construction was not unavoidable and that the regulations could be construed in order to ensure that benefit was payable. Indeed he accused his colleagues of defeating the claim 'by implying into the regulations a statutory fiction that is not expressed'.61 Here is evidence that an interpretive obligation would make a difference, however unpalatable the courts might find the decisions they were driven towards. In cases where there was a breach, the precedent of the 1998 Act would enable the courts to make a declaration of incompatibility and bat the matter back to the government to determine how to respond. A sovereign Parliament could choose to retain the legislation in breach of the Social Charter, though their electors may expect it to be changed. The other point of course - following the precedent of the 1998 Act - is that the social security authorities would also be bound to interpret their powers and duties in a manner consistent with the Social Charter, which indeed would be directly enforceable against public authorities whose schemes would have to be adapted and tailored to meet Social Charter measures. The standards of social welfare set by the Charter would be minimum standards below which it ought not to be possible to fall.

The other major point about the Human Rights Act as a precedent relates to the implications it would have for an incorporated Social Charter in terms of disputes between private parties. Following the model of the 1998 Act, the Social Charter would not be directly enforceable in actions between private parties; but if nevertheless the courts were regarded as public authorities and bound by it, they would be unable lawfully to grant a remedy in legal proceedings which violated or failed fully to apply the terms of the Charter. In this way the terms of the Charter would inevitably become implied terms of the contract of employment: an irreducible minimum below which the parties could not 'agree'. This in itself would be highly significant given that the European decency threshold for determining a fair wage for the purposes of the Social Charter is set at 60% the national average male wage.62 The incorporation of the Social Charter would also have huge implications for the law relating to collective bargaining and the labour injunction in trade disputes. It would not be possible for a court to grant an injunction which undermined the right to strike at least to the extent protected by the Charter. In this sense the incorporation of the Charter would have great implications for the common law: it would be nothing short of the socialisation of the common law from the old fashioned liberal values and undemocratic nature of which the community would be partially liberated.
Conclusion
The argument in this paper can be summarised as follows: social rights serve an important constitutional function, in the sense that they bring life and give meaning to the constitutional principles of liberty and equality. Although it is possible that these rights could be achieved by ordinary legislation in the normal way, constitutional change is making that less easy to secure, while the entrenchment or quasi entrenchment of civil and political rights subordinates social and economic rights to these entrenched civil and political rights: the latter may be introduced and may be sustained only if compatible with the former. (In some systems the predominant role of civil and political rights is another means of erecting constitutional barriers to social progress, by preventing the control of electoral power in the political process.63 This has not yet been the British experience, and it is not likely to be.)64 We are thus impaled on the horns of a dilemma: political equality and popular sovereignty are the preconditions of democracy, but they are principles which constitutional government is increasingly unable to deliver. One solution to these difficulties is to remove the barriers to democracy which have been erected. The other is to dilute their influence: to shape the values to which decision-makers must respond and the context within which decisions may be taken. In other words, there is a need for parallel structures to check their freedom of movement across the chess board.

The first of these options is not likely to happen. The informal constitutional arrangements in which space has been found for business interests to the exclusion of others reflects an economic imperative in an era of globalisation. The world's fourth largest economy is perceived to need the support of the business community in government, as much as the business community needs the support of the government. The formal constitutional changes which have taken place are equally secure. Although there is not the same economic rationale for them, they reflect a political imperative in the sense that they represent the one great 'political achievement' of the current Party in power, and its one most likely legacy to posterity. For reasons of political vanity alone, these changes are forever; they are opposed publicly only by those on the centre right. So in an era in which rights are being globalised like any other commodity, there is in truth no real option for those who are committed to the principle of self-government in a community of relative equals; or for those who are committed to constitutional government as a means to a more socially just society. The only option is to swim with the tide and to seek to rebalance the constitution with what Gurvitch refers to as a 'Bill of Social Rights'.

Although in many ways the least desirable option, it is also one which does not seem easily achievable in the emerging constitutional environment. There are, however, two indications that further 'rights creep' is already under way and that social rights will emerge as more prominent players in the British constitutional structure. The first is in the work of the parliamentary Joint Committee on Human Rights which scrutinises proposed legislation for compliance with human rights standards. This body is emerging as a body of integrity and independence (if not yet influence)65 and has indicated in one of its first reports that it will confine its examinations not only to compliance with the ECHR but also with other international treaties, including in one case the International Covenant on Economic, Social and Cultural Rights. At the other end of the scale is the EU Charter of Fundamental Rights of December 2000, a document with an uncertain but evolving legal status which has already been used in litigation against the British government in a case concerning the failure properly to implement the EC Working Time Directive; in the case in question it was cited by the Advocate General, while the Court relied instead on the earlier EC Charter on the Fundamental Social Rights of Workers. The impact of social rights in constitutional debates and adjudication in these different ways will inevitably give rise to irresistible calls for their more effective incorporation and protection in national constitutional law.

1 ILO Constitution, Annex, Part 1(d)
2 G Gurvitch, A Social of Bill Social Rights (1945), p 71
3 ibid, pp 70 - 71
4 Crofter Hand Woven Harris Tweed v Veitch [1942] AC 435, at p 463 (Lord Wright)
5 This is not necessarily an argument for the constitutional entrenchment of such rights so much as an argument for social and economic rights to have parity of status with civil and political rights: if the latter are constitutionally entrenched, then so too should the former.
6 The Guardian, 25 April 2000
7 A V Dicey, An Introduction to the Study of the Law of the Constitution (10th ed by E C S Wade, 1959), p 192
8 Representation of the People Act 1983, s 76; Political Parties, Elections and Referendums Act 2000, Parts V (political parties) and VI (third parties)
9 In its seminal general election manifesto in 1997 the Labour Party announced that 'Government and industry must work together to obtain key objectives aimed at enhancing the dynamism of the market, not undermining it' (New Labour, Because Britain Deserves Better (1997), p 2)
10 For a review of the Act in comparative context, see K D Ewing, 'Transparency, Accountability and Equality: The Political Parties, Elections and Referendums Act 2000' [2001] PL 542
11 Happily there is still room for the exotically named Baroness Darcy de Knayth, not to forget the Marquess of Cholmondeley
12 As at 31 March 2001
13 Other business appointments since 1997 have commercial interests in banking, film production, publishing, independent broadcasting, record production, the entertainment industry, and the Asian business community. Some of these appointees have been given ministerial positions. Yet others are directors of employment agencies and building societies. There have also been a number of trade unionists who have been appointed, though they are largely invisible.
14 HL Debs, 11 November 1999, WA 242. See T Barker, I Byrne and A Veal, Ruling by Task Force (1999)
15 Cm 4557-I (2000), para 10.6
16 This paragraph is drawn from reports in The Financial Times, 22 November 2001, and The Guardian, 23 November 2001
17 See S Haseler, The Super-Rich: The Unjust New World of Global Capitalism (2000)
18 See B Creighton, 'The ILO and the Protection of Human Rights in Australia' (1998) 22 MULR 239
19 For an indictment of the position in the United States, see Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards (2000). For a symposium and critique, see S Friedman and S Wood (eds) (2001) 39 British Journal of Industrial Relations 585.
20 The following account in this section is based on K D Ewing, 'The Council of Europe's Social Charter of 18 October 1961: Britain and the 15th Cycle of Supervision' (2001) 30 Industrial Law Journal 409.
21 It is also possible to derogate from Convention rights by means of secondary legislation (ss 14 - 17). This has been done in relation to the Anti-Terrorism, Crime and Security Bill which was published on 12 November 2001. The derogation is to permit legislation authorising the detention without trial of international terrorist suspects, in breach of article 5 of the Convention. See SI 2001/No 3644. The order was made on 11 November, laid before Parliament on 12 November, and brought into force on 13 November. It was not debated until 19 November. See H C Debs, 19 November 2001.
22 R v A [2001] 3 All ER 1, at p 17 (Lord Steyn)
23 See respectively, R (Alconbury Ltd) v Environment Secretary [2001] 2 WLR 1389 (Lord Hoffman); and Brown v Stott [2001] 2 All ER 97 (Lord Bingham)
24 T Campbell, in Campbell et al (eds), Sceptical Essays on Human Rights (2001), ch 3
25 R v A, above, at p 17 (Lord Steyn)
26 R v A, above
27 Public authorities are not defined in the Act. A number of early cases have suggested that the courts have adopted a wide approach: Poplar Housing Association Ltd v Donoghue [2001] 3 WLR 183 (housing association a functional public authority); Marcic v Thames Water Utilities Ltd [2001] 3 All ER 698 (privatised water company a public body); and Aston Cantlow PCC v Wallbank, above (Parochial Parish Council a public authority, because 'it possesses powers which private individuals do not possess to determine how others should act' (p 402). But compare RSPCA v Attorney General [2001] 3 All ER 530 (RSPCA not a public authority).
28 Cf RSPCA v Attorney General, above, at p 547 (Lightman J)
29 See M Hunt [1998] PL 423; R Buxton (2000) 116 48; W Wade (2000) 116 LQR 217
30 [2001] 2 All ER 289
31 at p 325 (Sedley LJ)
32 B Emmerson and A Ashworth, Human Rights and Criminal Proceedings (2001). This has also been the experience in Scotland where the Act was introduced 2 years earlier than in the rest of the country. The fair trial provisions in article 6 have proved to be a particularly fertile area for litigation.
33 at p 325 (Sedley LJ)
34 M Smyth, Business and the Human Rights Act 1998 (2000), p 2
35 Note the advice given by the government to its civil servants: '[The Act] will have a significant impact on your work, whether you are involved in developing legislation, making decisions on behalf of a Minister or carrying out Government policy, concerned with prosecutions or the enforcement of law or simply involved in the administration of a contract or working in personnel': See Smyth, ibid, p 1, footnote 6
36 See www.parliament.uk/commons/selcom/hrhome.htm
37 Another difficulty related to the Financial Services and Markets Act 2000, and the powers of the Financial Services Authority to regulate abuse in the City. See Memorandum from HM Treasury to the Joint Committee on Parts V, VI, and XII of the Bill in Relation to the ECHR, www.treasury.gov.uk/docs/1999/fsmbmemo175.html
38 HL Debs, 7 June 1999, col 1090
39 Blackpool and The Fylde College v NATFHE [1994] IRLR 227
40 Advocate General for Scotland v MacDonald 2001 SLT 819
41 London Underground Ltd v RMT [2001] ICR 647
42 The People, 18 November 2001
43 The Guardian, 26 November 2001
44 See also Venables v News Group Newspapers Ltd [2001] 1 All ER 908
45 Mail on Sunday, 25 November 2001
46 R v A, above, per Lords Steyn and Hope respectively
47 R(H) v Mental Health Review Tribunal, North and East London Region, The Times, 2 April 2001
48 [2001] 3 All ER 229
49 at p 242
50 Gurvitch, A Bill of Social Rights, above, pp 9 - 11
51 The following four paragraphs draw heavily on K D Ewing, 'Social Rights and Constitutional Law' [1999] PL 104, pp 117 - 119
52 For a full account, see M Ainis and T Martines, Codice Costituzionale (2001), pp 235 - 335
53 See M Forde, Bills of Rights and Trade Union Immunities: Some French Lessons' (1984) 13 Industrial Law Journal 40
54 Basic Law, art 9(3). Note also art 1
55 M T Andenas and I Wilberg, The Constitution of Norway: A Commentary (1987), p 134
56 NV Dutch Railways v Transport Unions FNV, FSV and CNV [1988] 6 Int Lab Law Reps
57 For a classic example (relating to ILO Conventions 87, 98 and 151), see Council of Civil Service Unions v Minister for Civil Service [1984] IRLR 353 (CA); upheld [1985] AC 274 (HL)
58 [2001] 4 All ER 62
59 See N S Harris, Social Security Law in Context (2000)
60 at p 87
61 ibid
62 Council of Europe, European Social Charter: Committee of Independent Experts; Conclusions XIV-2, vol 1, pp 49 - 54
63 Most famously in Buckley v Valeo, 424 US 1 (1976). A similar position was taken by the Alberta courts in Canada, though it appears that the Supreme Court of Canada has set its face against the libertarian position of its American counterpart, and appears prepared to accept equalising measures. See Libman v Quebec (1997) 151 DLR (4th) 385
64 R v Radio Authority, ex parte Bull [1997] 2 All ER 561; [1996] QB 169 for a robust defence of the statutory ban on political advertising on radio and television. The court defended these restrictions in the interests of political equality. It is true that in Bowman v United Kingdom (1998) the European Court of Human Rights found that third party limits violated article 10 of the Convention (freedom of expression). But this was because at £10(!) they were too low. New restraints set the limit at £500: there is no suggestion that this is vulnerable to successful challenge.
65 The Joint Committee called into question the legality of the derogation in respect of the anti-Terrorism, Crime and Security Bill, but it seems to little avail, though its report may be useful in subsequent legal proceedings by someone challenging the legality of his or her detention. See HL 37; HC 372 (2001-2)