Human Rights Act: A softer impact
The HRA will have less practical effect on competition law because human rights principles have already permeated this area of law, writes David Marks
The Human Rights Act 1998 (HRA) has undoubted relevance in the context of competition law and EC law issues generally. Yet the impact may not be great in practice because human rights principles have already permeated this area of law in other ways.When the Competition Act 1998 came into effect on 1 March, the Office of Fair Trading (OFT) and the sector regulators for energy, rail and telecoms gained significant competition law enforcement powers. These powers included the ability to inspect business premises without prior warning and to impose fines of up to 10% of UK turnover for three years. These powers substantially mirror those which the European Commission (EC) has had and which the UK competition authorities have envied for decades.Those who have attracted the unwanted attention of the OFT or of a sector regulator will enjoy a number of protections under the HRA. These will include, in particular, the right to a fair trial (Article 6 of the European Convention on Human Rights) and the right to the protection of property (Article 1, First Protocol).However, the HRA is unlikely to cause major surprises in this area. This is because the Convention, in a roundabout way, is already part of our law, by virtue of being part of EC law and has been for a very long time.The EU treaties do not set out a catalogue of human rights. In 1994 the European Court ruled that the EU, as a supranational body, is incapable of being a signatory to the Convention. However, the treaties do recognise the general principles of law commonly accepted by member states as a source of EU law. Since all member states adhere to the Convention, the European Court has treated the Convention as a recognised source of such general principles of law. Most member states also recognise similar principles in other forms, most frequently in the shape of fundamental rights protected by the state’s constitution. The Convention as a source of general principles of community law was expressly confirmed in the (Maastricht) Treaty on European Union (Article 6).Human rights principles under the Convention have been advanced in a number of contexts such as to defend the right to a fair hearing and to protect a company from self-incrimination during Commission inspections under EC competition law. The Convention’s principles are therefore already interwoven with European Court case law which is part of the UK legal system.This position is further entrenched by Section 60 of the Competition Act 1998, commonly called the governing principles section. This provides that – ‘as far as possible’ – the provisions of the Competition Act are to be applied consistently with Community law, including decisions of the European Court. It remains to be seen whether this principle will be applied to all aspects of competition procedure in addition to the interpretation of the substantive law.There is a further side to EC law and fundamental rights, and it is one that is still developing. By next month the EU is expected to adopt a ‘Charter of Fundamental Rights of the European Union’. The charter is intended to restate existing fundamental rights already recognised under the general principles of Community law. It aims to do so in an accessible way, visible to the citizen. By adapting its own charter, the EU is also seeking to deal with the consequences of the European Court’s ruling that the EU could not be a signatory to the Convention.With these narrow aims the charter should not arouse any controversy. Its progress has attracted little attention until recent weeks. Only then did the drafts of the charter begin to recognise an explicit right to strike and give greater weight to social rights than in previous drafts. This issue has aroused strong feelings in the UK. There is also contention as to whether the charter should be declaratory or legally binding. Even if purely declaratory, the charter principles will be part of the EC law backdrop, which is part of UK law. The HRA therefore has a tangled and cosmopolitan family tree. New branches are still growing.
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