Company Law and the Human Rights Act 1998
A. Dignam & D. Allen, COMPANY LAW AND THE HUMAN RIGHTS ACT 1998, Butterworths, 2000
19 Pages Posted: 14 May 2011
Date Written: July 12, 2000
The Human Rights Act 1998 (‘HRA’) has a profound effect on the English legal system. The Act gives further effect to most of the rights and freedoms guaranteed under the European Convention on Human Rights (‘ECHR’). Four decades of case law emanating from the European Court of Human Rights (‘ECtHR’) have entered English law and jurisprudence at a stroke. Indeed, it was the recognition by the Home Office of the profound effect of the Act which delayed its commencement for two years. Although this book considers the general impact of the HRA on the English legal system, it is ultimately concerned with the effect of the Act on corporations and company law. While the ECHR contains the word ‘human’ in its title, and companies are clearly not ‘human’, the Strasbourg court has always allowed companies to enjoy guaranteed rights under the ECHR, provided they could obtain locus standi by establishing themselves as ‘victims of an unlawful act’ within the meaning of ECHR Article 34. This they could do for some rights and freedoms but not others. For example Article 12 which guarantees a right to ‘men and women’ to marry, or by implication, Article 3 prohibiting torture, will not be applicable to artificial entities. However, other articles such as Articles 6 (Right to a fair trial), 8 (Right to Privacy), 10 (Freedom of expression); and Article 1 of Protocol 1 (Right to Property) have all been held by the ECtHR to be applicable to companies. As with the ECHR, any legal or natural person similarly has standing for the purposes of the HRA where they can show they are a victim of a rights violation. It is on the ECtHR’s treatment of the corporation and the implications of this for English law that we focus in this book.
By using the corporation as the focus of this book we have attempted to straddle the traditional public/private law divide that exists within the English legal system. In general private lawyers have had little to do with public law concepts. The HRA changed this overnight, as rights and their associated interpretative techniques now pervade all areas of law. It is because of this that we have aimed the book primarily at private lawyers who will now have to utilise rights based arguments in the private law sphere. In particular two types of private lawyers are addressed. First, those who have traditionally had little to do with public law concepts and need guidance as to the application of the HRA both generally and specifically its impact on companies; and second, private lawyers who have some knowledge of the HRA but need to know about specific impacts on their area of law i.e. the effect of Article 8 (privacy) on freedom of expression for media companies, Article 6 (fair trial) on the corporate veil, the Department of Trade and Industry and insolvency practitioners, or the responsibilities of privatised utilities under the HRA. In order to serve these constituencies the book is divided into two sections. The first ‘Human Rights and the Human Rights Act 1998’ provides a comprehensive guide to the ECHR and the operation of the ECHR rights in English law through the Human Rights Act 1998. The second part of the book ‘Companies and the Human Rights Act 1998’ provides a thematic approach to the HRA’s impact on companies by looking at specific areas of corporate behavior where a rights based system impacts.
Keywords: Corporations, Human Rights, Companies, Human Rights Act 1998, Employees, public authority, victim, European Convention on Human Rights, Strasbourg, natural person, artificial person
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