Repealing the Human Rights Act and the implications for UK Competition Law Enforcement

European Court of Human Rights

(By Scott Summers)

Since the latter part of 2014, the Conservative party has promised that if it won at the 2015 General Election, it would repeal the Human Rights Act 1998 (HRA) and enact a new British Bill of Rights (BBR). Now that the Conservatives have won the General Election by achieving a majority in the House of Commons, this plan could come to fruition. Whilst many have discussed the potential legal implications of repealing the HRA, there is one area of contention that has been completely overlooked; namely, the impact that repealing the HRA will have on competition law proceedings. This blog post seeks to address this issue by considering the implications that repealing the HRA may have on s.188 of the Enterprise Act 2002, (hereafter, the ‘UK criminal cartel offence’).

As yet, it is not clear how the government plans to set about repealing the HRA and create a BBR and, as such, there are a variety of potential implications that might materialise. Thus, this post shall consider these implications alongside the role that three pieces of rights legislation may play during this transition and in the future. The first of these is the situation where the HRA is repealed and a new BBR is implemented. The second is the role that the EU Charter of Fundamental Rights (CFREU) may play. Thirdly, the role that the European Convention on Human Rights (ECHR) may still play in the protection of rights within the UK is discussed.

The repealing of the HRA and implementation of the BBR

The UK criminal cartel offence allows the Competition and Markets Authority to prosecute individuals that are involved in hardcore cartels. Currently, an individual’s rights are protected by the HRA. However, if the HRA is repealed, an individual’s rights will no longer be protected and that individual will need to rely on the protection afforded by the new BBR. As of yet, the Conservatives have not clearly explained or identified whom these rights will apply to, or indeed how they will apply. That said, the Conservatives’ proposal does note that:

the use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters’.

One can therefore presume that the cartel offence would be a situation where right protection will be secured. But the extent of this protection and how it will operate is yet to be identified.

The role of the EU Charter

The CFREU provides for right protection within the EU. However, it is only applicable when national authorities are applying articles of the EU Treaties or national law that is implementing an EU Directive or EU Regulation. The criminal cartel offence is a piece of national legislation but it does not reflect a EU directive or regulation. In fact, there is no EU criminal cartel offence. Therefore, this means that the CFREU cannot offer rights assistance or protection to an individual in this context. This will mean that, during the period of transition from the current HRA to the BBR, the CFREU will not have a role to play.

The role of the Convention

Let us now finally consider the role of the ECHR. In its proposal, the Conservative government identifies that the Convention will still apply within the UK because the UK will still be a signatory to it. However, what is unclear is whether it will have direct applicability or if the individual will have to invoke their rights before the European Court of Human Rights (ECtHR). This issue will depend entirely on the wording and protection offered by the BBR. The Conservatives’ proposal highlights how it will seek to make the ECtHR judgments advisory and non-binding on UK courts and how the UK will withdraw from the jurisdiction of the ECtHR. However, this may cause further issues as, in order to withdraw from the jurisdiction of the ECtHR, the UK would require all other signatory states to the Convention to agree to amend the Convention to allow this. This is highly unlikely and it is possible that the UK will have no option but to withdraw from the Convention or submit to the continued jurisdiction of the ECtHR. If the UK were to withdraw, it would mean that the protection the Convention would offer in competition proceedings would be removed and that an individual would only be able to rely on the right protection offered under the new BBR. This could actually lead to a weakening of right protection in competition law proceedings; again, depending on how the BBR is worded and utilised in practice. This could, in itself, have connotations for the UK’s continued EU membership.

If the HRA is repealed, we can see that under the criminal cartel offence an individual’s rights should still be protected; depending on how the government words the new BBR. However, it may become the case that for Convention rights to be invoked an individual has to apply straight to the Strasbourg Court, as the new BBR may not provide the necessary protection. This is a curious scenario to be in, given that the aim of the Conservatives’ new BBR is to limit the role the Strasbourg Court takes – mainly making it and its jurisprudence advisory. Similarly, it is not clear what the continuing role of the ECHR will be for right protection in the UK’s criminal cartel offence in the future. It seems that it will be difficult for the UK to maintain its position as a party to the Convention in the future. Whatever happens, the crucial thing for us to watch is how the BBR is developed and worded so that we can identify to whom and to what rights it will apply. It is clear, however, that the BBR will have an impact on the way an individual’s rights are protected in future competition law proceedings.

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