Human rights

The first issue to consider is who is a victim?

To bring proceedings claiming a violation of rights the applicant must be a "victim" of the unlawful act. This follows the narrow test established in Strasbourg which only permits claims from those directly affected or "at risk" from the act complained of.

Interest or pressure groups and professional associations are, on the face of it, not entitled to challenge the law in this way. However, past cases illustrate that such groups can raise actions of they can prove (i) they are directly affected by the measure complained of and (ii) that they have authority to act on behalf of identified group members.

Where this is not possible, UK courts may grant leave for these groups to submit written comments as the European Court of Human Rights (ECtHR) has allowed Amnesty International to do in the past. Accordingly, an association on behalf of members may be entitled to complain.

Have the rights been waived by the applicant?

Before instigating proceedings it should be confirmed that the rights in question were not waived by the applicant. This is particularly relevant in the employment law context.

Where an employee contracts to work under certain conditions (such as e-mail monitoring) then arguably they have waived their rights as long as the waiver or contract is clear and the employee understands the position.

Note that the ECtHR has also held that rights can be tacitly waived by the failure of an applicant to rely upon a right earlier in the proceedings. Therefore any human rights arguments should be raised at the first available opportunity.

Raising a claim

Claims can be raised in three ways:

By direct proceedings in court -- for example where the police have breached an individual's right to privacy that individual could raise proceedings in court solely on the basis of the alleged violation.

In defence/counterclaim -- a human rights issue may be raised by a party in defending an action brought by a public authority or as a counter-claim in that action.

Indirectly in a court/tribunal -- where an individual claims unfair dismissal from a private employer, for example, a direct claim of breach of human rights is not available as the act does not apply directly to purely private bodies.

However, if an alleged breach of human rights is brought to an employment tribunal's attention during a routine claim then that tribunal, as a public authority, must not act in a way which is incompatible with human rights.

Therefore the individual's right under the convention will be enforced by the tribunal albeit they could not have been raised directly by the individual themselves.

(This application of the act to private bodies "by the back door" is causing great debate at present and will require court guidance in early course.)

Until then an outcome such as the foregoing should be expected and there is a theoretical possibility that the tribunal could find a human rights violation although the original employment claim has failed).