The Impact Of The Human Rights Act 1998 On Commercial Practice

Author:Mr Andrew Farquharson
Profession:Fenners
 
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The Human Rights Act 1998 in the corporate context

The Human Rights Act 1998 ("HRA" and the "Act") came into force across the UK on 2nd October 2000 and has directly incorporated the European Convention on Human Rights (the "Convention") into domestic law.

As from 2nd October 2000 individuals (which includes legal entities in most cases) have been able to rely on Convention rights both as a sword (i.e. by bringing an action for breach of Convention rights protected by the Act) and as a shield (i.e. by using Convention issues as a defence to proceedings).

Significantly in the corporate context the HRA:

Protects companies from misuse of state and public authority power;

Means taking a case to the European Court of Human Rights in Strasbourg will be a last resort, should the domestic courts fail to provide a remedy, or if they declare a statute to be incompatible with the Convention and the government takes no remedial action to correct this;

Imposes obligations on companies in a broad range of activities;

Has vertical effect. This allows individuals to bring proceedings against public authorities;

May have horizontal effect, allowing individuals and companies to invoke Convention rights against one another as well as against public authorities. The courts have yet to resolve this debate other than in respect of protecting freedom of expression. In the dispute between Hello magazine and Michael Douglas/ Catherine Zeta-Jones it was recognised that the HRA may be relied on by an individual as against another individual to protect freedom of expression in the context of the grant of a court injunction to prevent publication.

Although commercial practice is not an obvious sphere for the development of human rights law the case law of the European Court of Human Rights has increasingly focused on this area. Corporate undertakings have frequently invoked the protection of the right to fair trial guaranteed by Article 6 before the European Court of Human Rights. Meanwhile the Court has made it clear that a corporate undertaking enjoys Convention rights. The HRA itself has had a relatively limited effect in the commercial field, however, its impact has nonetheless been felt in several areas.

Outline of the main terms of the HRA

s2 HRA requires domestic courts and tribunals to take into account, although not necessarily to follow, the decisions and opinions of the European Court of Human Rights.

s3 HRA requires primary and secondary legislation to be interpreted in a way which is compatible with the Convention so far as is possible. Only as a last resort should the courts conclude that legislation is incompatible with the Convention.

s4 HRA allows the High Court or above to make a declaration of incompatibility where a provision of domestic legislation is found to...

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