Joint Committee On Human Rights Twenty-Sixth Report

4. Letter from the Legal Adviser to Linda Perham MP


As part of its function to consider human rights in the United Kingdom, the Joint Committee on Human Rights examines all bills introduced to either House with a view to reporting to each House on their compatibility with Convention rights under the Human Rights Act 1998, and with other rights which arise in international law under human rights instruments by which the United Kingdom is bound. The Committee is considering whether to report to each House on the Corporate Responsibility Bill. It has carried out an initial examination of this Bill, and would be grateful for your comments on the following points raised by its Legal Adviser. I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Human Rights Act 1998.

The Committee is concerned about the possibility that the requirements in the Bill to report on a very wide range of matters and to make papers available to the public might violate the right to freedom of expression under ECHR Article 10, the right to the peaceful enjoyment of property under Article 1 of Protocol No. 1 to the ECHR, the right to respect for private life under ECHR Article 8, and the right to a fair hearing in criminal cases under ECHR Article 6(1), for the following reasons.

Any legal requirement to consult or to publish reports and assessments before deciding how to use one's property, as under clause 4, raises issues relating to the right to the peaceful enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR. An interference with this right is capable of being justified if any conditions are provided for by law, and the interference pursues a recognised public interest and strikes a fair balance between the rights of the individual and the general interest. The test of "provided for by law" imports requirements of legal certainty related to the principles of the rule of law, and the "fair balance" test requires that the burdens imposed should not be disproportionate to the aim which is pursued and the risk which is sought to be avoided. A requirement to publish reports would also engage the right to freedom of expression under ECHR Article 10(1), because forcing a person to impart information against his or her will is as much an infringement of the right to freedom of expression as is silencing a person who wants to provide information. An interference with Article 10(1) rights can be justified under Article 10(2) if it is prescribed by law (which imports requirements of legal certainty), and necessary in a democratic society for one of the purposes listed in Article 10(2).

Clause 3 of the Bill might be in danger of failing the "provided for by law/prescribed by law" test because of a lack of certainty in the obligations imposed. An obligation to report annually on "any significant environmental, social, economic and financial impacts of any of its operations in the preceding year" (italics added) and on "an assessment of the environmental, social, economic and financial impacts of any proposed activities" might be too vague and uncertain to meet the test of legal certainty. The same could apply to the duty to "take reasonable steps to make the report available to...any other person with an interest in the report" and "stakeholders", i.e. "any person who may be affected by any operations to which a report relates". For related reasons, it seems to me that the obligation which clause 3 would impose would be so massive and demanding as to be in danger of being regarded as disproportionate to, and so not "necessary in a democratic society for", any legitimate aim under those Articles.

Clause 5 of the Bill, requiring a company to make background papers available for inspection by members of the public, would engage the company's rights to respect for private life under ECHR Article 8, including respect for its confidences and for legal professional privilege. It would also engage the right not to have coerced self-incriminating material used against it in criminal proceedings, an aspect of the right under ECHR Article 6(1) to a fair hearing in the determination of criminal charges (as that right has been interpreted by the European Court of Human Rights). It is not clear how far the exemption from the requirement to make papers available, contained in clause 5(3) of the Bill, would effectively protect those rights. Under clause 5(3), papers need not be made available if making them available "would disclose information that would seriously damage the company or would breach personal privacy". The Committee is considering whether it would provide more reliable and effective protection for Convention rights to put in the Bill, for example—

—  (a) specific and express exceptions from the duty under clause 5(1) where it would lead to a breach of legal professional privilege, and

—  (b) express provisions preventing anything compulsorily disclosed pursuant to clause 5 (or, indeed, clauses 3 or 4) from being used against the company in criminal proceedings, particularly as clauses 3(2)(b) and 5(4) would require companies to take reasonable steps to make reports available to "any body set up pursuant to any enactment to regulate its activities" and to the Financial Services Authority or other relevant regulatory body.

The Committee would be grateful for any comments that you may wish to make on these reflections on the compatibility of the Bill with human rights. The Committee understands the difficulties which the sponsors of private members' bills, with limited resources, often face in responding to questions from the Committee about the human rights implications of their bills. Nevertheless, without suggesting that you are under any obligation to respond to its concerns, the Committee would of course give full weight to any representations which you might wish to put before it.

If you wished to submit a response, the Committee would appreciate receiving it by Friday 4 October.

24 July 2002

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 16 December 2002