The Bill going through Parliament will put universities, colleges schools at the cutting edge in defining fundamental freedoms. John Hall reports
LORD DENNING once famously talked about "the incoming tide of Community law (which) has not left the beach of labour law in the UK unwashed".
When the Human Rights Bill - the latest example of this - reaches the statute book, its effects will extend beyond labour law to the whole range of human rights and fundamental freedoms in the UK.
Indeed, it derives not from the Treaty of Rome but from the idealism of the Allies (among whom the British were prominent) to the abuses of fascism. For this reason the Bill has been given high priority by the Government and looks likely to receive the Royal Assent by the summer.
Universities, colleges and schools once again find themselves at the cutting edge of change. As custodians of the twin concepts of "academic freedom" and "equal opportunities", they should be prepared for the Bill to have a profound impact.
The Bill will for the first time incorporate in UK law the rights and fundamental freedoms set out in the European Convention of Human Rights. This will mean that our own courts and tribunals will have to interpret UK law in accordance with the convention and to enforce convention rights.
The rights to be protected under the Bill will not replicate those currently protected by the European Court of Human Rights in Strasbourg. A wide discretion will be given to our judges to develop British human rights as they think appropriate. In effect, the convention rights will have whatever meaning the judges decide. Thus, although they "must take into account" rulings of Strasbourg, judges will not be bound to follow them or to read relevant articles in the context of the remainder of the convention.
From a reading of the Bill the potential for a home-grown rights regime is very great. The articles of the convention amount to "aspirational" statements capable of broad interpretation. If a "public authority", (which is sufficiently widely defined to include education bodies), acts in a way "incompatible" with relevant articles of the convention, legal action can be sought in the courts and tribunals. In addition, a court will be able to make a "declaration of incompatibility" opening a way for Parliament to act.
Of particular interest to universities, colleges and schools will be the following:
* The right of freedom of expression (Article 10). This right includes freedom to hold opinions and to receive and impart information and ideas "without interference by public authority..."
These rights go beyond the familiar "academic freedom" clause. What constitutes "interference" and the extent to which an institution may succeed in pleading one of the specified defences in responses to a challenge under Article 10 will be left to the judges to decide. Practices and procedures in the workplace, as well as those relating to students, will need to take into account this right, and universities and colleges which have not already done so may wish to extend the scope of their freedom of speech codes.
* Enjoyment of rights and freedoms under the convention "without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, associated with a minority, property, birth or other status" (Article 14). This provision goes beyond gender and race discrimination in providing that action must be carried out in a non-discriminatory way.
* The right to freedom of thought, conscience and religion, including freedom for a person to change his or her religion or belief (Article 9). The Government has recently introduced an amendment to the Bill which will be particularly difficult to interpret. If a court's determination of any question under the Bill might affect the exercise by a religious organisation (or its members) of its (or their) right under Article 9, the court is required to have "particular regard" to that right. Denominational institutions should beware - there is plenty of scope for legal argument, for example in relation to staffing issues.
* The right to a fair and public hearing "within a reasonable time by an independent and impartial tribunal established by law" (Article 6). Although under rulings of the Strasbourg Court it is unlikely that education institutions will be required to hold disciplinary hearings "in public", it is difficult to predict the view UK courts will take.
In addition to these provisions the Human Rights Bill covers freedom of assembly including the right to join trade unions (Article 11), the right to respect for private and family life (Article 8) and, importantly, the right to education, including respect for the right of parents to ensure that education and teaching is in conformity with their own religious and philosophical convictions (Article 2 of the First Protocol) providing once again fertile ground for judge made law.
However, what is not yet clear is whether universities, colleges and local authorities will be able to apply to the courts for the protection of their rights, eg by challenging decisions of the Secretary of State or the regulatory bodies. It is to be hoped that the judges will allow publicly-funded institutions to plead the convention rights, where this is necessary and appropriate, as an important check on the Leviathan powers vested in central Government.
Education bodies will, no doubt, be in the forefront of welcoming the enactment of the Bill; they should go further and review their policies and procedures to ensure that they are not open to challenges under it. The Human Rights Bill may eventually leave a tide mark much higher up the beach than even Lord Denning would have predicted.