Human rights of businesses in the UK

The primary human rights instrument across Europe is the European Convention on Human Rights (ECHR) (34 pages/1.3 MB), to which the UK and 45 other European states are parties. In the UK, the ECHR is given force of law by the Human Rights Act 1998, which requires all UK governments and public bodies to act in a way that complies with ECHR rights.

It is well established in UK and European case law that businesses can rely on ECHR rights in legal challenges to the decisions or actions of a government or public body. In practice, most of the ECHR rights are not relevant to a business - for example, a business does not need the guarantee of freedom from torture. However, there are four key ECHR rights that have frequently been relied on by businesses, as set out below. 

The right to property

Article 1, Protocol 1 ECHR safeguards a person’s property rights, limiting the state’s ability to deprive a person of their property or possessions, or restrict the way they may be used. It is a qualified right, so this means that a state may interfere with property rights to some extent, where justified by the wider public interest. In these cases, the courts will balance the interests of the property owner with the wider public interest that may be in play. 

The right can be relied on for example, by a private landowner seeking to remove trespassing protesters from their land. The state enforcement authorities may be breaching the landowner’s property rights, if they do not take action to remove the trespassers. 

The ECHR right to property applies to a wide range of type of property. Importantly for businesses, money is one type of property recognised. For example, this means that taxation and levies imposed on a business by the state must comply with the right to property. Generally, the courts will allow the state a wide margin of appreciation in how it sets taxation, given the balance that must be struck with the wider public interest. However, a court may consider that the state has not struck a fair balance if it applies a very high rate of tax retrospectively, so that a company faces a far higher rate of taxation on its past revenue than it could have reasonably expected to face at the time its business activities were generating the revenue. 

One example of property rights being relied on in relation to a corporation’s taxes is the 2002 case of S.A. Dangeville v. France. There, a French company had been denied a claim in the French courts for repayment by the tax authorities of VAT that it had overpaid, and it took its claim to the European Court of Human Rights. The court found that the refusal of any recovery of the overpayments breached the company’s property rights, and it ordered the French authorities to pay damages reflecting the amount of the overpayments. 

Freedom of expression

Article 10 ECHR guarantees freedom of expression, limiting the ability of governments and public bodies to restrict a person’s right to disclose information or express opinions. This is also a qualified right, so a state may impose restrictions, if justified by a legitimate aim and proportionate. 

Freedom of expression does not only cover the high profile issues about free speech concerning controversial political views, such as the legislation passed in 2023 on free speech in higher education institutions. 

Businesses in traditional and online media can also rely on freedom of expression to defend their right to publish material. For example, in the 2024 case of Associated Newspapers v the UK, the UK publishers of the Daily Mail succeeded in their argument that, when they lost a libel case, the court order that they pay the claimant’s legal costs had restricted their freedom of expression. This was because the costs order included payment of the claimant’s lawyers’ success fee on top of the legal costs they had incurred, a practice which the court considered would have a ‘chilling effect’ on public interest publications and was not justified and proportionate. 

The right to a fair hearing

Article 6 ECHR protects a person’s right to a fair hearing before an independent court or tribunal, when their civil rights are determined.  This can be relevant for a business if it is subject to some form of regulatory or licensing decision made by a public body. The courts will consider if there is an adequate and fair process and will look at that decision making process as a whole, including the extent to which any decision can be appealed in the courts. A court may consider that a fair hearing has not been guaranteed, if a business’s right to appeal the decision to an independent court has been restricted in some way. 

One example of a business successfully relying on Article 6 ECHR was the 1989 case of Unión Alimentaria Sanders S.A. v Spain. The food supply company in question brought proceedings in the Spanish courts for a breach of contract against another food business, eventually securing a judgment in its favour more than four years after lodging its claim, and a full two years after the court had heard all submissions. The company complained to the European Court that it had suffered a further financial loss from the delay in the proceedings, which deprived it of a fair hearing ‘within a reasonable time’. The court agreed, ordering the Spanish authorities to pay damages to the company compensating it for the effects of inflation and bank fees that the company had faced due to the delay. 

The right to privacy

Article 8 ECHR guarantees the right to private and family life, including the right to privacy. It can be the basis for many types of privacy claims, including the claims that high-profile individuals may bring against media publishers for misuse of private information. 

Although a corporate entity does not have a private life or a family, the courts have recognised that the Article 8 rights can be relied on to protect the privacy of a business. This means that regulators and law enforcement bodies must comply with the right to privacy when accessing business premises or business papers in the course of their work. This is a qualified right, so the courts will allow some interferences with privacy, if they are justified and proportionate, with suitable safeguards. 

For example, in the 2023 case of UAB Kesko Senukai Lithuania v. Lithuania, the company had been subject to an inspection by the national competition authority, which searched a number of computers in the company’s office and copied a large amount of data from them for its investigation. The national courts refused to hear the company’s complaints that the inspection was excessive and unlawful. The company appealed to the European Court, which held that there were insufficient safeguards on the powers of the national competition authority, due to the national courts’ refusal, and the inspection was unlawful. 

Human rights dispute resolution strategy

Raising human rights arguments in a dispute can open up additional remedies under the Human Rights Act and potential appeals to the European Court, including the ability to challenge legislation that restricts these human rights. They also have the advantage of placing the onus on a public body to explain and justify its approach to respecting a business’s rights, in the knowledge that the courts will scrutinise these justifications closely.  

For example, in the 2002 case of International Transport Roth GmbH & Ors v Secretary of State For the Home Department, a number of haulage companies found themselves facing substantial financial penalties under strict new UK legislation penalising them for transporting illegal entrants into the UK unknowingly, after the individuals had smuggled themselves into their lorries. Using the Human Rights Act, the companies were able to challenge the legislation in question, relying on the right to a fair trial and the right to property. The English Court of Appeal agreed that the penalties breached their rights, and issued a declaration of incompatibility, which led to the government amending the legislation later that same year, to comply with the rights in question. 

As these cases highlight, human rights arguments can be an important part of a business’s dispute resolution strategy, when it needs to defend its legitimate interests against potentially unlawful interventions from governments or other public bodies.