Is Human Rights law and Private law compatible?

Human Rights law is a topic that is currently under intense scrutiny from politicians and the public at large. Under the new Conservative Government, there is a threat that the Human Rights Act 1999 will be repealed in favour of a British Bill of Rights.

The puzzle for many is how human rights can have any application in the fields of private law, such as contract and tort. The rights that are generally protected in human rights legislation focus on civil liberties and political freedoms, focussing on protecting the rights of individuals from the abuse of powers by the state.

That being said, human rights law has a wide reaching impact on private law, and the manner in which Member States manage the private sector. The impact of human rights law is most commonly contained in national constituencies and other similar documents, and is derived indirectly by the court acknowledging that the values and fundamental rights should have a radiating effect on the entire legal system.

The European Convention of Human Rights (ECHR) has a far- reaching impact on private law. This impact is enforced through a number of mediums and is enshrined in a number of legal documents which affect Member States. This is further strengthened in the UK by the express incorporation of the ECHR into UK law, and the imposition on all public authorities, including courts, to make decisions that are compatible with the ECHR.

Even if European private law is not directly involved, more general market regulation may have consequences in private relations. Any national regulations of markets may be subject to challenge on the ground that it interferes with the fundamental market freedoms of the EU and competition law. Such challenges often raise questions about the enforceability of contracts.

The risks of inserting human rights into private law

Legal tradition depicts clear boundaries between public law and private law, however, many human rights principles, such as the respect for liberty and the dignity of individuals, should arguably effect all social relations, including those in the private law sector. The parties to a contract, for example, should respect these values and ensure they play an important role in creating and maintaining party relations.

There is a difference, however, between the wide reach effect of public law mentioned above, and the proposal that fundamental rights and human rights should function to shape private relationships through law. It is important to identify the differences between the two types of law, to prevent human rights law from shaping private relationships. This would infringe upon the traditional legal model where public law governs the relationship between the state and the citizen, and the rules of private law, which regulate private relations between citizens and business associations. These boundaries are not pointless; they have evolved as a functional response to practical problems of government and adjudication. In respect of private law, this aspect was developed to prevent actual abuse and infringement of citizens’ rights by the state.  Further, there is a risk that a transfer of fundamental rights into private law doctrines would result in misunderstanding and distortion. The analyses of these risks rely on the view of the internal structures of a legal system.

Private law traditionally respects the parties’ discretion to choose. The principle of freedom of contract and the freedom to choose a contractual partner represents recognition in private law that liberty of the individual is of the utmost importance. It follows that the direct application of enshrined human rights to those in the private sector would impose a degree of political correctness that would be oppressive for private individuals.

Derogation from rights

In public law, it is no defence for the state to allege that the individual has consented to their rights being interfered with. In private law, however, it is common for parties to sacrifice their rights by agreement. This derogation has been applied in the private sphere even in cases where consent is not easily apparent. Private law has always attached substantial importance on the parties’ consent in relation to the lawfulness of conduct; human rights law takes the opposite approach.