human rights & business (and a few other things)

Repealing the Human Rights Act – what practical significance for the field of business and human rights?

In its 2015 manifesto the UK Conservative Party pledged to “scrap the Human Rights Act” (p. 60). Having won a clear majority in the recent election, David Cameron and his new conservative government are now in a position to do just that. Repealing the Human Rights Act would mean less government accountability and would negatively affect the daily lives of millions of British people. Some have also warned against the risks of contagion to other countries, including Putin’s Russia, putting millions of others in an even more vulnerable position .

The Human Rights Act is the landmark piece of legislation, adopted by Parliament, that has incorporated the European Convention on Human Rights into UK law. Section 6(1) of the Human Rights Act provides that “it is unlawful for a public authority to act in a way which is incompatible with a [European] Convention [on Human Rights] right”. It is a guarantee against arbitrary decisions as it ensures that the government respects the rule of law and  human rights at all times, in everything they do. At first glance, therefore, repealing the Human Rights Act would not have any direct impact on the field of business and human rights. After all, the Act requires public authorities, and not companies, to respect human rights.

However, I see four main ways in which the repeal of the Human Rights Act would impact the field of business and human rights.

1. It would set a bad example for companies

The UK prides itself on having been the first country to come up with an Action Plan implementing the 2011 UN Guiding Principles on Business and Human Rights (discussed in this blog here). On paper it is determined to ensure that British companies do no harm when operating abroad. It has also adopted legislation to force large companies to report on their human rights performance. Both initiatives, though limited in scope, are nevertheless of important symbolic significance. The problem with the UK repealing the Human Rights Act, therefore, is that the government’s authority in the human rights area would be greatly diminished. To put it bluntly: who would want to listen to human rights recommendations emanating from a government who disregards human rights?  It looks to me like a clear case of “do as I say, not as I do”.

The consequences of this should not be overlooked, especially because it is clear that leadership plays a great role in the business and human rights area. It is about creating the right circumstances for a virtuous corporate culture to develop.  But why should businesses bother when those in power don’t?

2. It would deny victims of corporate abuse the possibility to get remedies in the UK

Although there has not been any clear business and human rights cases before the European Court of Human Rights, the Court has held before that states are under an obligation to prevent human rights violations committed by non-state entities, such as corporations. In the landmark 1994 Lopez Ostra case, the Court held that Spain had violated the right of the applicant under Article 8 (right to private life) by failing to prevent a company from polluting the environment, which had negatively affected the applicant’s quality of life.

If the Human Rights Act was to be repealed, victims of similar abuses in the UK would not be able to use Article 8 against the UK authorities before domestic courts should the authorities fail to protect the victims’ rights against corporate abuse. The only way to pursue a human rights claim on the basis of the Convention would be for victims to go before the European Court of Human Rights directly, assuming of course that the new government won’t pull out of the Convention altogether.

3. It would create specific accountability gaps for victims of abuses by companies carrying out public functions such as running prisons or care homes

A number of private companies in the UK run detention centres and care homes, functions that were traditionally carried out by the state. There has been uncertainty over whether the Human Rights Act applies to these situations, or whether it is actually acceptable for the government to ‘contract out its human rights obligations’ (UK Parliament, Report of the Joint Committee, 2009, para. 134). Repealing the Human Rights Act would settle the issue in a highly dangerous way: potential victims, such as vulnerable elderly people, would be placed in a position where their rights would not be adequately protected.

4. It would deny companies, and not only individuals, the protection of the Convention

Finally, I think it’s worth mentioning that business and human rights is also about the ‘human rights’ of businesses. Companies may suffer from violations of their rights, as exemplified by some key cases of the European Court of Human Rights brought by news companies in relation to the right to freedom of expression (Observer and Guardian v UK, 1991). As for individuals, repealing the Human Rights Act would mean going back to the pre-Human Rights Act situation in which human rights cases had to be brought directly to Strasbourg, which is much more complicated, long and uncertain. Surely, this is not in the interests of any business.

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