The Human Rights Act 1998 is a significant
piece of constitutional reform and will affect every area of law in this country. It will
impact directly on businesses, as well as individuals. It is going to change the corporate
map of the UK over the years to come.
The Act elevates the European Convention of Human Rights from an international treaty,
with little domestic application, to a cornerstone of the English legal order. The Act
empowers the English courts to implement the Convention in a new and effective manner. For
the first time, the courts will even be able to force Parliament to change legislation
which is incompatible with the Convention.
The Convention guarantees various fundamental rights and freedoms including privacy,
freedom of expression, association and assembly as well as access to justice and a fair
trial for everyone. Significantly, ‘everyone’ includes legal persons, such as
companies, trusts and associations.
Why is this Act so significant?
- It obliges courts to decide all cases before
them in compatibility with Convention rights
- It requires all courts and tribunals to
interpret past and future UK legislation to ensure compatibility with Convention rights
when making their decisions
- It requires the courts to take Convention
case law into account in all cases, in so far as they are relevant
- It enables Acts of Parliament to be changed
by a fast track procedure if a declaration of incompatibility is made by the courts.
In future, the outcome of all court and
tribunal proceedings (including those between businesses and private litigants) will be
affected by the Act. This is because the courts will be obliged to interpret statutes,
exercise judicial discretion and ensure that their application of the common law and
equitable rights are compatible with the Convention.
Implications for Business
Examples of where Convention rights are likely to affect your business include:
- the right to property: disputes relating to
the ownership of shares or the tenure, use and development of land
- the right to a fair trial
- the right to freedom of expression - gives
businesses the right to advertise but restricts an employer’s rights to impose dress
codes at work
- the right to private life includes commercial
premises and therefore the Act may be relied on to protect business confidentiality. This
right will also have an impact on the extent to which employers can undertake surveillance
of their staff’s activities at work
- it may even incorporate new implied terms
into standard commercial contracts.
Some of these rights seem to have
contradictory implications. For example, a business’ right to confidentiality will
need to be weighed against an employee’s right to free speech. Mechanisms to resolve
these conflicts, and concepts such as ‘proportionality’ and the ‘protection
of legitimate interests’ are, therefore, vital to ensure rights are not used in a
discriminatory manner.
Although enacted last year, the Act will not be fully operational until Autumn 2000. As
well as ensuring thorough training of the judiciary, the delay also enables the government
to assess the full effects of implementation. It is too late however for second thoughts,
and interesting times lie ahead.
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
For further information
please contact Adam Aldred
e-mail: [email protected]
2 Park Lane, Leeds LS3 1ES
Tel: 0113 284 7000
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