- In US, this problem dealt with in Constitution: Art 1 para 3
- Taken alone, retro rules are a monstrosity.
- To appraise them intelligently, we must place them in the context of a system of rules that are generally prospective. Curiously, then, situations ay arise where retro rules essential to advance cause for legality. More info at Dentist Calgary
- When? – when things go wrong that retro statute often becomes indispensable as a curative measure for internal morality. “Though proper movement is forward, sometimes we have to turn back and pick up the pieces”.
- And: though taken by itself, retro impairs principle of legality, but it alleviate effect of a previous failure to realise two other desiderata of legality: that the laws should be made known to those affected by them and that they should be capable of being obeyed.
- Don’t be fooled, retro not always curative, e.g Roehm Purge, killed 100 ppl, then Hitler made retroactive statute.
- Second perspective is not so much contribution retro makes to inner morality of law, but rather to circumstance that it unavoidably attaches in some measure to the office of judge.
- How? If A and B both have equally good claim on face of statute, and judge decides the case, he is inevitably engaging in an act of retrospective legislation.
- Also, consider that after A v B decided, C and D have dispute and C refuses to settle because he thinks A v B decision was wrong and that it should be overruled. If overruling is made retrospective, then D loses out though he relied on a legal decision that was clearly in his favour.
Regulation of Investigatory Powers Act 2000 (RIPA)
Came into Force October 2000 – Abogado de accidentes
Purpose is intended to implement article 5 of the Telecommunications Data
Protection Directive (No 97/66).
Communications As far as the interception of internal communications is concerned,
Interception unless there is (expressly or by implication) consent (by both parties to
the communication) to the interception, a criminal offence may be
committed. An employer can only lawfully intercept external
communications without consent if it complies with the provisions of the
Telecommunications (Lawful Business Practice) (Interception of
Communications) Regulations 2000, SI 2000/2699.
The Regs The Regulations create in effect a number of ‘lawful purposes’ whereby
employers can monitor and record communications between parties
without their consent, providing that the employer has made ‘all
reasonable efforts to inform’ every person who uses the
telecommunication system that their communication may be monitored.
Lawful Purposes they include:
1 creating records in case a dispute arises;
2 ensuring compliance with regulatory or statutory rules;
3 customer care;
4 prevention of crime and security against hackers;
5 investigating the unauthorised use of the telecommunications
Data Protection Act 1998 (DPA)
Came into force 1 March 2000
Purpose Under the DPA 1998, privacy attaches to ‘collected personal data’.
What is covered? Protection covers both computer processed personal data if the data was
retrieved ‘by reference to an employee’ as well as paper-based personal
records stored in filing systems ‘by reference to employees or criteria
relating to them’.
Personal Files There are wide-ranging rights for employees to receive copies of their
personal files, to ask for corrections or removal of inaccuracies and to be
told why personal information about them is being kept.
Personal Data The definition of ‘personal data’ appears to be wide enough to cover
appraisals and assessments.
References There is a specific exemption for confidential references.
Processing Data The DPA 1998 applies to the ‘processing of the data’. This covers most of
The routine personnel tasks from the creation of personnel information
to its filing, retention and storage.
Safeguards The Act sets out, by way of stated ‘data protection principles’ some basic
safeguards and controls about data processing. As far as employees
are concerned, these safeguards and controls mean, among other
things, that personal data must:
i. be obtained only for specific and lawful purposes
ii. must be processed fairly and lawfully and
iii. must be kept accurate and up to date.
Sensitive Data There are additional and more severe restrictions on the processing of
‘sensitive’ personal data – this includes data about an employee’s racial
or ethnic origins, political beliefs, physical or mental health, or sex life,
and the commission of offences.
E/ee obtaining details Employees have the right, upon request (and payment of a fee
up to £10), to be told (within 40 days) whether personal data
about them is being processed and, if so, to be told what the
data is, why it is being processed and to whom it is going.
If personal data on one employee contains personal data on
another, that employee’s permission will be needed, or details
may be blanked out.
The Information Commissioner is responsible for freedom of information under the
Freedom of Information Act 2000, which is not due to be
fully in force until November 2005 and has responsibility
for the working and policing of the DPA 1998.
Also includes the publication of codes of practice to
assist those who have control of personal data.
Employment Code In October 2000, the Commission published the first part of the
Employment Practices Data Protection Code. The Code is designed to
assist employers comply with the Act.
Article 8 has also been used to protect the interests of homosexuals serving in the armed forces. See the Lustig Prean v UK case referred to at 8.2.2(8), where the ECHR held that the applicants’
discharge from the armed forces as part of a blanket ban on homosexuals infringed their right to
respect for their private life. The internal investigation which was carried out prior to their
discharge was also found to be a breach of Article 8. The UK Government was unable to show
that either breach was necessary in a democratic society. See 8.9.
Transexuals and pensions
The landmark decision of the ECHR on the rights of transsexuals is Goodwin v United Kingdom
. The ECHR held that the lack of recognition in the UK of a transsexual’s new gender
identity for legal purposes is a breach of Article 8 (and Article 12 – right to marry). This will have
implications for employment law in respect of, for example, pensions.
Regulation of Investigatory Powers Act 2000 (RIPA 2000) and the DPA 1998
The issues raised by Article 8 are also reflected in these two other recent pieces of legislation ( Written by Notary Public London )
Articles 9 – freedom of thought, conscience and religion
It protects freedom of thought, conscience, and religion.
Article 10 – freedom of expression
It gives the right to freedom of expression. Both 10 and 11 are subject to similar
restrictions to those contained in Article 8.
Relevance to Employment:
These Articles (10 and 11) are most likely to be relevant to:
1 employees’ attendance at religious ceremonies
2 employers’ imposition of dress codes. Here there would be no need for a
comparison between the sexes as, under the SDA 1975, the issue would be simply
whether the interference with the freedom could be justified by the employer (eg on
health and safety grounds – but what about enhancing the employer’s business
reputation?). To a large extent the protection offered by Article 10 is mirrored in
3 Article 10 may also impact on confidentiality clauses in contracts.
Article 6 HRA – fair and public hearing – The Abogados de accidentes blog posts
This creates a right to a ‘fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law’.
This will (arguably) not apply to internal disciplinary procedures, but Tehrani v United Kingdom
Central Council for Nursing, Midwifery and Health Visiting  establishes that the position is
different where there are disciplinary proceedings which determine a right to practice a
Article 6 does apply to employment tribunals and the EAT, although there is some suggestion in
the Strasbourg jurisprudence that disputes relating to the employment rights of public officials
are not ‘civil rights and obligations’ but are disputes about the rights of civil servants
(see Neigel v France (2000). However, while the UK courts have to have regard to ECHR case-
law, they are not obliged to follow it.
Article 6 may be used to bring a claim and/or challenge areas such as:
1 limitation periods;
2 qualifying periods;
3 funding (in Airey v Ireland (1979) the ECHR found a breach of Article 6 where legal aid
was not available to assist a litigant who wished to apply for a judicial separation);
4 refusal to grant adjournments (see Teinaz v London Borough of Wandsworth
5 delays in hearings (eg, it may allow a challenge to the lengthy delays in equal pay
cases, see Somjee v United Kingdom );
6 representation (see Dispatch Management Services (UK) Ltd v Douglas and
7 independence and impartiality (the House of Lords held in Lawal v Northern
Spirit Ltd ) that there is a real possibility of bias where counsel appears as
representative in front of a division of the EAT where he has previously sat as part-time
judge with one or both wing members
8 fairness in terms of ‘equality at arms’ (eg the right of both parties to present their
cases without being placed at a substantial disadvantage when compared to the
means of and resources available to the other party).
Article 8 HRA – respect for private and family life and correspondence (the Privacy Article)
This provision gives a “right to respect for private and family life and correspondence except for
Article 8(2) ‘interference’ by a public authority which is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or the
economic well being of the country, for the prevention of disorder or crime, for the protection of
health or morals or the protection of the rights and freedoms of others.”
Article 8 may be used to bring a claim and/or challenge areas such as:
1 opening ‘private and confidential’ mail addressed to the employee: It may allow
employees to challenge over-intrusive policies by employers. For example, if the
employer opens this type of mail, the employee may be able to bring a claim
2 email monitoring: if employers monitor employees’ emails without telling them and for no
good reason, employees may have a claim under Article 8. If they are public sector
employees, they may (see 6.2.20 and 11.3.2) have a free-standing claim under Article
8. If they are private sector employees, they may be able to rely indirectly on Article 8 in
an unfair dismissal or breach of contract context.
Ultimately, if the government does not try to regulate over-intrusive policies by
employers, employees may be able to bring a claim against the government for failing to
protect their Convention rights (see Halford v UK )
3 pre-employment screening or testing without proper justification:
eg: there will be some groups of workers where there is a genuine risk that they
could infect others – such as surgeons)
eg, e/er asks questions about whether an applicant/employee is HIV-positive,
that may itself give rise to an Article 8 complaint.
4 searching employees: Article 8 may also be relevant to the question of whether
employers can search their employees or test them for drugs (see O’Flynn v Airlinks
Airport Coach Company Ltd (2002)
5 drug testing:
- What is a conception of law: general interp. Of legal practice as whole in its best light and why on that conception justification for coercion is there. So far looked at Q if it fits our practice, now look if justifies.
- If – contrary to Dwork. argument – conventionalism did fit our legal practices, would it provide sound justification? Earlier described an argument that it would – “the idea of protected expectation” ( that collective force be used only in accordance with standards chosen and rad through procedures the community as a whole knows will be used for that purpose. —
- Now must ask – is this ideal sound?
Fairness and Surprise
- Might be thought that this idea is democratic, but confuses two issues: Should people have final say how judge decide cases?
- Some say conventionalist system best because puts people on fair notice before depriving liberty. But even then, as seen in hard cases, there will be some surprise no matter what decision judges in those cases reach.
- But is reducing surprise so good? Suggestion that conventionalism reduces surprise must assume then not that surpise is unfair but it’s inefficient/imposes unnecessary risks/frightens people.
- But conventionalism not justifiable just because surprise not desirable.
- The political argument for conventionalism is that it protects people as much as possible from surprise. If our sole aim was to prevent surprise – that’d be unilateralism.
- In criminal law (US/UK), law is very close to unilateralism. In US even constitutional principle (non retrospectively). But private law legal practice not like that – judges very often decide for plaintiff EVEN when according to conventionalism the plaintiff had no legal right to win.
- Strict conventionalism seems more eligible that unilateralism precisely because it is bilateral. It insists that neither side has right to win. Conventionalist must show and distinguish situations where surprise must be tolerated and where avoided.
Convention and Coordination
- Point of conventionalism not just about protecting from surprise, but more complex goal, achieving social benefits of coordinated private and commercial activity.
- Need rules that protect harmony of working together. Convention establishes procedures where people an rely on state action. And where procedures have gaps. People know they have no right to rely on anything. — but if litigation arises, can rely that judges will try to get best rule going forward.
- This account fits in nicely with agreement by convention and agreement in conviction.
- Conventionalists defence of bilateralism: “Since it matters to some extent which rule is chosen, we do best to use convention only to protect decisions that some responsible political institution has actually taken on merits and to not include under umbrella decision by default, that is decision no no one has actually made. — If no decision made, court should be free to decide on merits, taking into account strategic consistency.”
Conventionalism and Pragmatism
- Defense of conventionalism we have now constructed has two parts:
- Wise adjudication consists in finding right balance between predictability and flexibility and,
- right balance is secured by judges respecting past explicit decisions of political institutions but not enforcing decisions by default in way unilateralism does. (more vulnerable than first point)
- Second general conception of law: Legal pragmatism: holds that people are never entitled to anything but the judicial decision that is, all things considered, best for the community as a whole, without regard to any past political decision. Radicalness of that mitigated by strategic value of coherence with past decisions. But, overall, judges should be ready to change rules in interest of community even if damage to authority of some political institutions.
- Legal pragmatist different os self conscious conventionalist (who sees someone like McLoughlin recover in virtue of past decisions)
- Conventionalist: Judges not see themselves free to change rules adopted pursuant to reigning legal conventions just because on balance a different rule would be more just or efficient.
- Pragmatist: No conventions of the (just above) sort recognised.
- Because society so complex: would be foolish to say that any theory a priori is the right one. If anything, better off with pragmatism because it is more adaptive (because if progression shows conventionalist better…it will move us in that direction).
- Not to advocate pragmatism, But if we choose conventionalism because it provides acceptable strategy for reaching the most efficient balance between certainty and flexibility, then we should choose pragmatism, which seems a far better strategy, instead.
- Summary: In early part of chapter, argued that conventionalism fits our legal practices badly. I asked if that conception would justify these practices, by providing an attractive picture of law’s point, if it fit well. We have now seen it would not, we have no reason to strain to make it fit. Failure of conventionalism as interpretation of our law is complete: it FAILS on both dimensions of interpretation.
Convention and Consistency
- Case against conventionalism: Strict conventionalism fails (esp w emphasis on neg part). Fails for paradoxical reason: our judges actually pay more attention to so called conventional sources of law like statutes and precedents than conventionalism allows them to do!
- If in Elmer’s case had been strict conventionalists, would have decided case in two stages:
- inspected judicial practice to see if all judges agreed that words of stat must be given their “literal” meaning OR
- Not be given literal meaning.
- Well, since ob didn’t agree, turned to how statute should be read, and that make sense only on assumption that the law judges have an obligation o enforce depends on correct reading even when it is controversial – this is exactly the assumption conventionalism denies.
- Also in snail darter. Disagreed whether they were obligated by correct theory of legislation o enforce most literal or most sensible reading in absence of evidence what congress intended. BUT, for strict conventionalist, law has run out here.
- So a self conscious conventionalist would maybe think about past to make new law more consistent with old. Two kinds of consistency a law maker may seek:
- Consistency in strategy: worry that new rules fit with old, but doesn’t require judge to probe past to find best interpretation of statute.
- Consistency in principle: Requires various standards governing state’s use of coercion against its citizens be consistent in the sense that they express a single and comprehensive vision of justice. So would look for consistency in principle in cases before and after McLoughlin.
- Conventionalism differs from law as integrity precisely because conventionalism rejects consistency in principle as source of legal rights.
- Are interest in conventionalism lies in its negative claim that convention exhausts intrinsic normative power of past decisions. — If you think consistency in principle (not merely strategy) must be at heart of adjudication has rejected conventionalism.
Convention and Consensus
- Argument above: So this deep concern judges show about “correct” reading of statutes and precedents in hard cases is actually embarrassment to conventionalism.
- Dwork offers another one now: challenge the assumption that whatever consensus lawyers have achieved about legislation and precedent is properly seen as matter of convention. Is it? Must look over some stretch of time to see.
- Assume every lawyer in UK accepts that statue is duly enacted by Plt then no real doubt what it means. Two explanations for this. True by convention (then substantive attack out of order), or independent conviction (substantive attack is threat to proposition).
- Which is true? Not obvious from reading random cases. Must look at pattern over time. And have changed over time. How can we explain sea change in dominant theory of legislation?
- Answer: Practice changed in response to arguments made in context of adjudication, as arguments about what judges should do in particular cases, not in special mini-constitutional conventions. Trickled through, law school papers, dissenting judgments.
- Yet, though rules of games change over time, once rule settled and accepted as convention. Crisp distinction between arguments ABOUT and arguments WITHIN rules. But Judges like to change settled practice in mid-game, sometimes on encouragement from a certain council.
- Not prove that nothing is settled in UK or US law as matter of genuine convention, like authority of constitution. Can draw two conclusions:
- Nothing need be settled as matter of convention in order for legal system not only to exist but to flourish. Interpretive attitude needs Paradigms, but these need not be matters of convention. Sufficient if level of agreement in conviction high enough at any given time to allow debate over fundamental practices like legislation and precedent to proved in the way described in Ch 2, building boat planks one by one.
- Conventionalism not good interp. To describe process by which legal culture shifts over time. Conventionalism fails here as it fails in cross section, in explaining how particular hard cases like our samples are debated and decided.