The Effect of the Human Rights Act 1998 on English Law - Essay Example

The Effect of the Human Rights Act 1998 on English Law of the of the The Effect of the Human Rights Act 1998 on English Law The United Kingdom enacted the Human Rights Act 1998 to incorporate the provisions of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms into its national law. This Act has drastically changed the laws of the UK. Prior to the introduction of this Act, cases involving human right breaches were dealt with by the European Court of Human Rights. The UK courts were not in a position to prosecute them. However, this situation has changed with the 1998 Act, which requires the UK courts to adopt the case law of the European Court of Human Rights for interpreting the provisions of the Convention (Human Rights Act takes effect, 2000). The courts in the UK are required to give effect to the provisions of the ECHR, which bestows new powers upon the UK judges. It also requires public authorities to comply with the provisions of the ECHR. In the area of employment law, the HRA focuses on unfair dismissal of employees. The present employment law is effective in protecting the interests of employees. However, in the wake of the HRA, employers would have to be more cautious in their dealings with their employees (Human Rights Act takes effect, 2000). The Human Rights Act 1998 introduces several provisions that relate to employment law. The Act prohibits the unfair dismissal of employees. For instance, Eurostar, reinstated two female employees, it had dismissed for wearing trousers, due to the enactment of the Human Rights Act. The dismissal of female employees, on grounds of inappropriate dress, is generally on the basis of a substantial reason. This clause has been removed by the new Act. However, it does not provide any novel and enforceable rights to employees (Hirst, 2000, 3). Some rights under the European Convention on Human Rights, such as the Article 3 rights that prohibit torture, or subjection to inhuman or degrading treatment, are absolute rights. Judges are required to maintain a balance between the rights and the responsibilities of individuals with regard to their commercial interests. Article 9 provides the right to hold religious beliefs. This is an absolute right; and individuals have the right to manifest their religious beliefs through worship, teaching, practice and observance. These activities can be conducted, either in private or in the public (Lammy). Although it is absolute in nature, it has to be limited to ensure the interests of public safety and to protect public order. The rights and freedoms of people belonging to other religions have to be respected. As such, the courts are reluctant to protect the rights of employees with regard to their religious freedom. For instance, if a Christian employee is required to work on a Sunday, the courts do not consider this to be a breach of his right to religious belief under Article 9 of the Convention. Article 10 protects the freedom to hold opinions and to receive and impart information and ideas without interference by any public authority. However, this right is not absolute, and it is controlled by the courts to protect the rights of other citizens (Lammy). The term expression encompasses words, pictures, images and actions to express an idea. It also can be information, or even a dress code. The employer may have a desire to project the corporate image by means of a dress code, and the employees may intend to express themselves through their dress. Thus, there should be a balance between these two counter claims. The European Court of Human Rights held that people have the right to express their beliefs through their dress (Lammy). All the same, in a clash between religious freedom and corporate image, the former will prevail. If a higher court finds the UK law to be incompatible with the Convention, then it has to furnish a declaration of incompatibility, in respect of that piece of legislation. In such cases, an amendment will have to be enacted, in a rapid manner. Such speedy action is to be achieved by a ministerial order, and not by means of an act of parliament (Human Rights Act takes effect, 2000). It is possible to take legal action against a company, under the provisions of the Human Rights Act 1998, in respect of its actions as a public body. However, this facility is limited in scope, as was disclosed in a 2002 case that dealt with a private care home in Cheshire. Specifically, the residents of this care home had moved the court to prevent the care home from closing down. It was their contention that such closure would infringe their right to a home life. The court, upon a thorough scrutiny of the facts of the case, concluded that the care home was not discharging any public function (R (Heather) v Leonard Cheshire Foundation, 2002). Consequently, it was held by the court that the care home was not responsible for the human rights of its residents. This ruling served to provide a carte blanche for the government and the local authorities, to circumvent human rights responsibilities, by assigning a private character to their functions. However, in Hampshire County Council v Beer, the Hampshire County Council commenced to organise farmers’ markets, under the name of Hampshire Farmers’ Markets. Beer had been actively involved in this endeavour, from its inception; but his application for a license to participate in these markets was rejected. The Court of Appeal permitted a judicial review of the decision taken by the Hampshire County Council (Hampshire County Council v Graham Beer, 2003). This decision was arrived at by the Court, due to the fact that the Council was operating the market on public land and to which the public had been provided access. Therefore, the Court was of the opinion that the Council was behaving as a public authority, in this instance, as per the provisions of section 6 of the Human Rights Act 1998 (Hampshire County Council v Graham Beer, 2003). In YL v Birmingham, the question of whether the Convention rights could be invoked, if a public services were provided by a public authority that had contracted for the provision of such services with a private service provider. The Law Lords ruled that the nursing home was not discharging the functions of a public nature. Hence, it was not required to uphold the provisions of the Convention (YL v. Birmingham City Council& Ors, 2007). Corporations have been obtaining the benefits of personhood, without the attendant disadvantages. This inequity has been perpetuated by the UK government, by means of its 1998 Human Rights Act. This Act serves to include the European Convention on Human Rights into the legislation of the UK. As far back as 1993, the UK government had clarified that corporations would not be permitted to take advantage of the proposed Act (Spencer, 2004). Corporations are legally responsible to their shareholders, and these are, in general large financial institutions. Assessment of a company by the stock market, in chiefly on the basis of financial parameters. Consequently, there are no standards, relating to social and environmental parameters that have to be adhered to by companies (Spencer, 2004). The parent companies should be made accountable for the misdeeds of their subsidiaries. This can be achieved, only by changing the law, in respect of corporate killing. However, this will not be effective in cases involving other offences, civil law or offences that take place outside the nation. Exclusion of liability by the parent entity implies that such liability had been transferred to creditors, workers, or the public at large (Spencer, 2004). The present trend results in a cost, risk, benefit approach to violate the law. Since violation of laws is facile and as the liability can be shifted to some other entity; companies can continue to make money by any possible means, at their disposal. Moreover, any risk that is attendant upon such illegal activity can be conveniently circumvented. The best way to curb such criminal activity by the corporate is to treat them as single entities, in a manner that is analogous to the approach adopted in the Tax law. In instances, where a subsidiary is jointly owned by two companies, both the parent companies would be made liable (Spencer, 2004). Nothing much can be expected from the European Court of Human Rights, in cases involving the violation of the human rights of the people, by corporations. This is on account of the fact that the European Convention on Human Rights categories society into only two groups, namely persons and states (Spencer, 2004). Thereafter, it aims to protect the rights of persons from intervention by the state. Thus, the only action possible under the Human Rights Act, against corporations, is by initiating action against them for having caused harm to an individual. However, such action has to deal with corporations, as if they were individuals. An exceedingly, vexatious aspect of the Human Rights Act is that an individual, can waive his rights (Spencer, 2004). Thus several companies have deprived significant rights of their employees, who had failed to go through their employment contracts carefully. Most importantly, corporations can insist upon a fair trial. This provides them with the same rights as individuals, which can prove highly beneficial. For instance, corporations cannot be compelled to incriminate themselves; which allows them conceal related documents in criminal cases. In addition, corporations enjoy the right to freedom of expression, and a number of property rights (Spencer, 2004). This permits corporations to contest governmental action that attempts to control property. The European Court of Human Rights is the court of last resort for cases filed under the Human Rights Act. It has rendered the stance of the UK government meaningless, due to its rulings, which have permitted the corporate human rights, in an indiscriminate manner. References Hampshire County Council v Graham Beer, EWCA Civ 1056 (England and Wales Court of Appeal 2003). Hirst, C. (2000, August 20). Rights Act to Spark Litigation Boom; British Companies and Regulators Stand By For Escalation in Legal Challenges After Human Rights Law is Enshrined in October. The Independent , p. Section: Business; Page 3. Human Rights Act . (1998, November 9). Human Rights Act 1998. Chapter 42 . London, United Kindgom: Her Majestys Stationery Office. Human Rights Act takes effect. (2000, October 2). World Markets Research Centre. Lammy, D. (n.d.). The Human Rights Act, A Business Bombshell? Retrieved December 15, 2009, from http://www.davidlammy.co.uk/da/21597 R (Heather) v Leonard Cheshire Foundation, EWCA Civ 366 (England and Wales Court of Appeal 2002). Spencer, R. (2004). Corporate law and structures. Oxford: Corporate Watch. The European Convention on Human Rights. (1952, March 20). The European Convention on Human Rights and its Five Protocols . Paris, France: Council of Europe. YL v. Birmingham City Council& Ors, UKHL 27 (United Kingdom House of Lords June 20, 2007). Read More