Appendix 5: Corporate Responsibility Bill |
Letter from the Chair to Ms 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 currently considering
the human rights implications of the Corporate Responsibility
Bill, which you introduced to the House of Commons.
The Committee is concerned about the possibility
that this Bill, by requiring companies to make certain information
available to the public and by interfering with the right of a
company to use its resources as it sees fit, might interfere with
the right to respect for private life under ECHR Article 8 and
the right to peaceful enjoyment of possessions under Article 1
of Protocol 1 to the ECHR. The Committee's Legal Adviser wrote
to you on 24 July 2002 about a similar Bill which you introduced
in the last session: see 26th Report of the Committee (HCP 1295/HL
Paper 182 01/02 enclosed). 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 wants to give you a further opportunity
to comment should you wish to do so.
The Committee is likely to be deciding on 17 November
2003 whether to draw the attention of each House to the Bill in
similar terms to those of its report of last year, and so would
be unable to take account of representations received after 14
5 November 2003
Memorandum from S E Cohen, legal adviser, on behalf
of Ms Linda Perham MP
I am writing to you as requested to let you have
some general thoughts with regard to the above mentioned Bill
and its compatibility or otherwise with the Human Rights Act 1998.
I have noted the various points raised by the Parliamentary
Committee in their letter of 24 July 2002 to Linda Perham MP.
I propose dealing with the various relevant Convention Rights
in turn but before doing so will address the general issue raised
of lack of certainty.
As the committee points out The European Convention
on Human Rights requires that state to act "in accordance
with the law" (Article 1 First Protocol). The principle of
legal certainty is inherent in the Convention as a whole.
Some useful guidance on the principle of certainty
can be found in the Judgment of the European Court of Human Rights
in Sunday Times v United Kingdom (1979) 2 EHRR 245:
"First the law must be adequately accessible:
the citizen must be able to have an indication that is adequate
in all the circumstances of the legal rules applicable to a given
case. Secondly, a norm can not be regarded as a 'law' unless it
is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able-if need be with appropriate
advice-to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail. Those consequences
need not be foreseeable with changing circumstances. Accordingly,
many laws are inevitably couched in terms which, to a great or
lesser extent, are vague and whose interpretation and application
are questions of practice."
The Bill has raised concerns with the Committee in
relation to the following convention rights:-
1. Right to a fair trial
Article 6 of the Convention applies to both criminal
and civil proceedings and can be invoked to protect companies
and their officers.
The right to a fair trial in a criminal case incorporates
a restriction on self-incrimination which means that prosecuting
authorities may not be able to rely on evidence obtained through
compulsion. This is the concern raised be the Committee. The privilege
against self incrimination is not absolute and guidance can be
found in Brown v Stott (2001) 2 WLR 817 where Lord Bingham stated:-
"The jurisprudence of the European Court (of
Human Rights) very clearly establishes that while the overall
fairness of a criminal trial cannot be compromised, the constituent
rights comprised whether expressly or implicitly, within Article
6 are not themselves absolute. Limited qualification of these
rights is acceptable if reasonably directed by national authorities
towards a clear and proper public objective and if represent no
greater qualification than the situation calls for."
The common law recognises a privilege with regard
to documents. However the position so far as the Strasbourg jurisprudence
is concerned is far from clear. In Funke v France (1993) 16 EHRR
297 the European Court of Human Rights found that a conviction
for failure to produce documents was a violation of Article 6
and drew no distinction between the compulsion to produce documents
and the answering of questions.
2. Right to respect for private life
The Committee has expressed concern with Clause 5
of the Bill which requires a company to make certain papers available
for inspection to the public. However, there would appear to be
no Strasbourg case law directly on the point of whether a corporation
can claim a right to privacy under Article 8. Such case law as
there is would seem to indicate that the right is of a personal
In Hoechst v EC Commission (1989) ECR 2859 the European
Court of Justice indicated "the protective scope of (Article
8) is concerned with the development of man's personal freedom.
If Article 8 is engaged et al it would be in its
application to "correspondence". This encompasses letters,
telephone calls, faxes and other forms of communication such as
e-mail. Interference with non-legal "correspondence"
is permitted but would have to be justified under Article 8(2)
i.e. "in accordance with the law and (as) necessary in a
democratic society in the interests of national security, public
safety or the economic well being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others".
To be compatible with Article 8 should it apply,
the Bill and its relevant provisions must be aimed at protecting
one or more of the above interests which are exhaustive.
A restriction will be "necessary in a democratic
society" only if there is a pressing social need for restriction
and the restriction is proportionate to the aim of responding
to that need in that it does not go further than is necessary.
Lawyer-client privilege is accorded a high degree
of protection by Article 8 and the bill ought perhaps to provide
explicit safeguards in this regard.
3. Freedom of Expression
Article 10 can be invoked by both natural and legal
persons and includes the right to receive and impart information.
It does not make obligatory the disclosure of information.
4. Protection of Property
The requirement in the Bill to consult or to publish
reports and assessments before deciding how to deal with property
amounts to a control or interference and thus as the Committee
points out engages Article 1 of the First Protocol which applies
to "every natural or legal person".
An assessment has to be undertaken of whether the
right balance has been achieved between 'the demands of the general
interest of the community and the requirements of the protection
of the individual's fundamental right' (the 'fair balance' test).
The application of the test will vary according to the measure
in issue and control is harder to justify than an interference
and it may arguable the Bill seeks to do the latter rather than
the former and accordingly the relevant provision may be easier
to justify. There must be a reasonable relationship of proportionality
between the means employed and the aim sought to be realised.
There is no concept of the 'public interest' as such but it is
necessary for there to be a legitimate aim in the sense of the
Bill and/or its relevant provisions not being 'manifestly without
The scope for review by a court of the object or
purpose of a legislative measure of other interference with property
is limited. The state has a wide margin of appreciation in implementing
social and economic policies and the legislature's judgement as
to what is in the public or general interest will usually be respected.
It is worth noting it has been suggested by the Strasbourg
Court only interferences which touch on the financial value of
property can engage this Convention Right. It may be questioned
whether the provisions of the Bill highlighted by the Committee
even need to be justified in this regard although the economic
interests connected with the running of a business are capable
of being protected under Article 1 of the First Protocol.
11 November 2003