1. Treaty on European Union 1991. OJ C 224–31 8.92 1.

2. See the Protocol on Social Policy annexed to the Maastricht Treaty, which authorizes the other 11 states (there were then 12) to take action amongst themselves and apply the acts and decisions necessary to give effect to their agreement. But see the postscript below.

3. See below.

4. See below.

5. See Deryck, Beyleveld ‘The Concept of a Human Right and Incorporation of the European Convention on Human Rights’ (1995) Public Law 577–598 n 2Google Scholar.

6. Ibid at 596–597.

7. Arguably, art 4 and/or art 8 ECHR implicitly grant a general right to a minimum wage; but the arguments are somewhat tenuous: see below.

8. See Deryck, Beyleveld ‘Legal Theory and Dialectically Contingent Justifications for the Principle of Generic Consistency’ (1996) 9 Ratio Juris 1541 Google Scholar. The PGC requires agents to act in accord with the generic rights of all agents and prospective purposive agents. For explication of the technical terms, see below.

9. See Social Europe: The Regulation of Working Conditions in the Member States of the EC, vol 1, Supplement 4/92, which states that there are three main systems: (1) statutory national minimum wage (in France, Spain, the Netherlands, Portugal and Luxembourg); (2) collective bargaining, either by national level collective bargaining agreements establishing a national minimum wage (in Belgium and Greece), or by industry level collective agreements fixing specific minimum levels of pay (in Denmark, Italy and Germany); and (3) sectoral wage minima (in Ireland by Joint Labour Committees).

10. Until 1986, there were 43 wages councils, as well as the Agricultural Wages Board.

11. Section 12.

12. Gregg and Machin ‘Wages Councils-Down and Out?’ (1993) 84 Poverty 2.

13. Section 16(2).

14. Bayliss, F ‘Making a Minimum Wage Work’ (1991) Fabian Pamphlet 545 4Google Scholar.

15. Machin, and Manning, ‘The Effects of Minimum Wages on Wage Dispersion and Employment: Evidence from the UK Wages Councils’ (1994) 47 Industrial and Labour Relations Review 319.CrossRefGoogle Scholar

16. See eg Boardman v Phipps [1967] 2 AC 46, where a trustee was granted remuneration despite the general rule that fiduciaries may not profit from their position.

17. See the minimum wage provisions in the human rights treaties considered below.

18. Generally, a quantum meruit payment would not be implied into a contract of employment where it would directly contradict the express terms of that contract. See Miles v Wakefield Metropolitan District Council [1987] IRLR 193, [1987] ICR 368. See also Gareth, Thomas in Encyclopaedia of Employment Law (London: Sweet and Maxwell, 1992, Vol 1 pp 1513–1517.Google Scholar)

19. See the references to the Community Charter of Fundamental Rights and Freedoms of Workers, art 5 below. This is also true of many conventions, such as the ESC and ICESCR.

20. Article 117 states that the member states agree upon the need to promote improved living and working conditions and an improved standard of living for workers. Article 118 gives the Commission power to promote close co-operation between member states in the social field. Article 118A allows for directives to be adopted by a qualified majority of the Council for improving the working environment, in respect of health and safety. Article 119 provides for equal pay for men and women. Article 120 provides for equivalence between paid holiday schemes. Article 121 allows the Council to assign certain tasks to the Commission. Article 122 requires the Commission to report to the European Parliament on social developments.

21. Philippa, Watson ‘The Community Social Charter’ (1991) 28 Common Market Law Review 37.Google Scholar

22. A number of important employment law directives were adopted under this programme: eg the Acquired Rights Directive, providing protection for employees on the transfer of their employers' undertaking (Directive 77/187); the Directives on equal pay and equal opportunities for men and women (Directives 75/117 and 76/207); and the directive on collective redundancies (Directive 75/129).

23. In Journal of European Integration vol XIII (1990), Special Edition, Social Europe.

24. OJ 1989 C 126/4.

25. Com (89) 568 final.

26. Philippa, Watson ‘Social Policy After Maastricht’ (1993) 30 Common Market Law Review 481–513 at 490–491.Google Scholar

27. Philippa Watson op cit n 21, at 45.

28. Social Europe, Second Report on the Application of the Community Charter of the Fundamental Social Rights of Workers, Supplement 1/93. There have been discussions about the alleviation of poverty, following the EC Green Paper on European Social Policy, but it remains to be seen what will be the outcome of the new policies arising from them (see Bulletin of the EC. Supplement 6/93, and Chris Pond's evidence before the European Sub-committee on Growth, Competitiveness and Employment, responding to the EC White Paper).

29. COM (93) 388 final, OJ C 248/7 11 September 1993.

30. According to the Foreign and Commonwealth Office, which based its advice on the chart of signatures held by the Council of Europe, by 5 May 1996, Protocols 1,2,3,5, 8,10 and 11 had been both signed and ratified, Protocol 4 had been signed but not ratified, whereas Protocols 6,7, and 9 had been neither signed nor ratified.

31. Sieghart The Lawful Rights of Mankind (OUP 1986) p 126.

32. Ibid.

33. YB 6,278.

34. Sieghart op cit at 127.

35. See eg ESC, art 16.

36. Article 11 ECHR provides a right to freedom of association, and art 5 ESC provides a right to belong to a trade union.

37. In any event, the theoretical basis for the distinction is debatable because civil and political relationships have economic and social aspects, just as economic and social relationships have political aspects.

38. See also art 5 (ICESCR).

39. Paul, O'Higgins ‘The European Social Charter’ in Robert, Blackburn and John, Taylor (eds) Human Rights for the 1990s: Legal, Political and Ethical Issues (London: Mansell, 1991) p 121.Google Scholar

40. Part II of the Appendix to the Social Charter on the Scope of the Social Charter in Terms of Persons Protected, provides that art 4(4) ‘shall be so understood as not to prohibit immediate dismissal for any serious offence’ and, in relation to art 4(5), ‘that a Contracting Party may give the undertaking required in this paragraph if the great majority of workers are not permitted to suffer deductions from wages either by law or through collective agreements or arbitration awards, the exceptions being those persons not so covered’.

41. This figure was derived from research by the Council of Europe and the OECD. (See Paul O'Higgins op cit n 39 at 125.) According to Paul O'Higgins, what is required is a wage at this level: the article is not satisfied by topping up with social security, or by taking into account low tax for the low-paid. (However, the UDHR does allow payment by other means of social protection than wages and this generates possible problems of interpretation. See also n 58 below.)

42. Which states that: ‘[t]he Contracting Parties accept as the aim of their policy, to be pursued by all appropriate means, both national and international in character, the attainment of conditions in which the following rights and principles may be effectively recognised: [the rights prescribed by all 19 articles of Part II]’

43. See Hepple, B A ‘European and International Standards’ in Sweet, and Maxwell's, Encyclopaedia of Employment Law (London: Sweet and Maxwell, 1992)Google Scholar release 1: 15-xi-91-1048-1076.

44. See Hepple, B and Fredman, S, Labour Law and Industrial Relations in Great Britain (Deventer: Kluwer, 2nd edn, 1992) p 113.Google Scholar

45. For example, Harris, David The European Social Charter (Virginia: Charlottesville University Press, 1984) pp 16–17 Google Scholar, and Steiner, Henry J and Alston, Philip International Hum Rights in Context (Oxford: Clarendon Press, 1996) p 581.Google Scholar

46. See Kahn-Freund, O, ch 10 in EG Jacobs (ed) European Law and the Individual (North Holland, 1976)Google Scholar. Our view is that the distinction between a right that a member state undertakes as an aim versus a right that a member state holds itself to be bound by is the distinction between a right that a member state undertakes to implement effective recognition of and a right that it claims to have already recognised effectively.

47. O'Higgins, Paul ‘International Standards and British Labour Law’ in Lewis, Roy (ed) Labour Law in Britain (Oxford: Blackwell, 1986) p 583.Google Scholar

48. A third likely contributory factor is the belief that, because the ESC lacks an effective enforcement machinery, such comment would be academic. However lack of protest at violations of the ESC might itself contribute to lack of progress in instituting effective enforcement machinery.

49. Sieghart op cit at 96–97.

50. Ibid.

51. Ibid.

52. Thus, ICESCR implies that a fair wage (hence minimum wage) may be above the requirement for a decent living.

53. See Davidson, Scott Human Rights (Buckingham: Open University Press, 1993) p 65.Google ScholarPubMed

54. See Ibid.

55. See O'Higgins ‘The European Social Charter’ in Robert Blackburn and John Taylor (eds) n 39, at 125.

56. Pursuant to art 22 of the ILO Convention.

57. In the House of Commons at the end of 1982. See Smith, and Wood, Industrial Law (London: Butterworths, 5th edn, 1993) p 171.Google Scholar

58. It might seem that this contradicts what is contained in the UDHR which allows payment of workers by other means of social protection, such as social security or state benefits (see art 23(3)). On the other hand, it might be argued that alcoholic beverages are not exactly a means of social protection.

59. See O'Higgins ‘International Standards and British Labour Law’ in Roy Lewis (ed) op cit, n 47.

60. For example, art 4(1) ESC and arts 7(1)(a) ICESCR (see above).

61. See eg De Smith, S and Brazier, R Constitutional and Administrative Law (London: Penguin Books, 7th edn, 1994) p 153.Google Scholar

62. See Deryck Beyleveld op cit, n 5.

63. Ibid pp 581–582.

64. English domestic legislation is (the doctrine of parliamentary sovereignty notwithstanding) not immune to judicial review. See eg R v Secretary of State for Employment, ex p Seymour-Smith and Perez [1996] 1 All ER (EC) 1 and R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 All ER 910, [1995] 1 AC 1. The doctrine of parliamentary sovereignty may be squared with limitations upon the legitimate actions of Parliament by holding that it is Parliament itself that limits its own sovereignty by entering into international undertakings, parliamentary sovereignty being ultimately retained in reservation of the power to abrogate such undertakings.

65. Agents are those who act for their freely chosen purposes. Prospective purposive agents have the capacity to act for their freely chosen purposes and are disposed to do so but are not actually doing so. ‘PPAs’ covers both these groups.

66. If PPA has a negative claim-right to R then other PPAs (PPAOs) have a duty not to interfere with PPA having R against Xs will. If PPA has a positive claim-right to R then PPAOs have a duty to assist PPA to have or do R if X so wishes.

67. Generic conditions of action contrast with particular occurrent conditions of action, which are means for particular purposes or sets of purposes (but not all). Generic conditions have three levels — basic, non-subtractive, and additive. Basic conditions are necessary to be able to try to act. Removing them (eg the life of the agent or the agent's capacity to choose purposes) either prevents action altogether or (eg food, clothing, shelter, health) leads to systematic reduction in the capacity to act or (ultimately) to the total incapacity of the agent to act. Non-subtractive conditions are necessary to maintain the capacity to act successfully. For example, accurate information is a non-subtractive condition because being misinformed lessens one's chances of successful action whatever the action. Additive conditions are necessary to improve or widen one's chances of successful action whatever the action. Basic rights outweigh non-subtractive rights which, in turn, outweigh additive rights in case of conflict, and rights are hierarchically ordered within these levels according to how immediate or drastic is the effect of interference with them on the capacity to act at all or to act successfully.

68. Gewirth, Alan Reason and Morality (Chicago: University of Chicago Press, 1978).Google Scholar

69. See Beyleveld, Deryck The Dialectical Necessity of Morality: An Analysis and Defense of Alan Gewirth's Argument to the Principle of Generic Consistency (Chicago: University of Chicago Press, 1991)Google Scholar, in which this claim is defended systematically against objections.

70. See Beyleveld, Deryck and Brownsword, Roger Law as a Moral Judgment (London: Sweet & Maxwell, 1986 and Sheffield: Sheffield Academic Press, 1994)Google Scholar, and ‘The Dialectically Necessary Foundation of Natural Law’ in Nome, Alan (ed) Closure or Critique? New Directions in Legal Theory (Edinburgh: Edinburgh University Press, 1993) pp. 22–44.Google Scholar

71. The LPU states that if it is inferred that A has property y by virtue of A having property x, then it must also be inferred that B has property y by virtue of B having property x, whatever B might be.

72. ‘May’ implies ‘can’ just as much as ‘ought’ does.

73. See eg Palley, Claire The United Kingdom and Human Rights, Hamlyn Lectures (London: Stevens, 1991).Google Scholar

74. The Rt Hon Lord Browne-Wilkinson ‘The Infiltration of a Bill of Rights’ (1992) Public Law 397 at 401.

75. This argument (and the argument for automatic incorporation), unlike the claim that human rights are recognised in the common law, is not vulnerable to the objection that human rights cannot exist under a doctrine of parliamentary sovereignty. The argument for automatic incorporation makes the recognition of human rights contingent upon treaty, and the argument for indirect incorporation makes this recognition contingent upon legislation. Under treaty or legislation, the legal system contracts into human rights recognition. Within such recognition, parliamentary sovereignty is limited in so far as there can be no legitimate parliamentary derogation from the rights recognised unless and until the treaty is abrogated or the legislation recognising human rights rescinded. Under the presumption (which is applicable in either case) that parliamentary sovereignty is limited in this way by parliamentary assent there is no contradiction between parliamentary sovereignty and the recognition of human rights. Such a contradiction cannot be avoided, however, if rights recognised in the common law are conceived of as human rights.

76. Davidson, Scott Human Rights (Buckingham: Open University, 1993) p 5 Google ScholarPubMed. However, there have recently been attempts, in particular by some of the developing countries (employing notions of cultural relativism and cultural sovereignty) to try to modify this understanding. See Bayesky, Anne F ‘Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies’ (1996) 9 Ratio Juris 42–59.Google Scholar

77. The idea that human rights are inalienable does not imply that they may never be derogated from. An inalienable right is not necessarily an absolute right. Inalienability implies that only human rights can (in cases of conflict) override other human rights, and that, in the absence of conflict with other human rights, there are no considerations that can justify derogation from a human right.

78. To apply the PGC directly is to deduce prescriptions from the PGC together with the circumstances of the application. However, it may not always be possible to determine what the PGC requires in this way. This is because (a) the circumstances may be so complex that persons can reasonably disagree about what the PGC requires in these cases; or (b) the decision that needs to be made is optional in terms of the PGC (eg driving on the left-hand side of the road versus driving on the right-hand side), but is one that must be made because persons cannot be permitted to perform either option indiscriminately. The PGC handles these cases by prescribing (in its direct application) legitimate dispute-resolution procedures. Decisions made according to these procedures are indirect applications of the PGC. The conditions of legitimacy and the bindingness of these applications are discussed in detail in Deryck Beyleveld and Roger Brownsword Law as a Moral Judgment op cit, pp 178–186, and chs 7–9.

79. This is the right of an innocent person not to be killed against his/her will. See Gewirth, Alan ‘Are There Any Absolute Rights?’ (1981) 31 Philosophical Quarterly 1–16.CrossRefGoogle Scholar

80. The emerging jurisprudence of the European Court of Human Rights stresses that derogation on various grounds of social necessity requires the existence of a pressing social need, and that the restrictions themselves should be no more than is proportionate to the legitimate aim pursued. The idea of proportionality, here, certainly requires that derogatory provisions themselves be justified in terms of human rights.

81. Article 3 grants the right not to be subjected to torture or inhuman and degrading treatment or punishment. Article 4 grants the right not to be held in slavery or servitude. Article 7 grants the right not to be subject to retroactive punishment.

82. Currently, this is possible in the UK and in the world as a whole, though it may not be possible in some individual countries.

83. This analysis must form part of the analysis of the requirements of the PGC for political economy generally. Consult Gewirth, Alan The Community of Rights (Chicago: Chicago University Press, 1996).Google Scholar