Corporate Human Rights Claims & Judicial Independence | Part II

By Diego F. Soto-Miranda

Introduction

In this second part of the article, Diego F. Soto-Miranda draws conclusions from his jurisprudence-based analysis of the judiciary's approach to human rights claims by corporate entities. Building upon the first part's review of relevant case law, Diego F. Soto-Miranda delves deeper into why the judiciary continues to engage human rights arguments in commercial disputes and offers a more transparent alternative framework.

Why Human Rights Arguments in Commercial Disputes Often Fail

Despite frequent engagement with human rights arguments, the judiciary rarely finds these rights applicable in commercial disputes. Key reasons include:

Judicial Resources: Judges dedicate significant time to considering human rights claims, even when they are unlikely to succeed.
Perceived Judicial Intentions: Rather than being enamoured with human rights law, judges may consciously appear to entertain such claims to uphold democratic appearances, balancing parliamentary sovereignty while safeguarding judicial independence.

Judicial Independence vs. Strasbourg Jurisprudence

A major concern is the judiciary's balancing act between:

Respecting Parliamentary Sovereignty: Ensuring that domestic courts do not override parliament’s authority.

Maintaining Judicial Independence: Avoiding the imposition of Strasbourg jurisprudence without due consideration of the UK's legal traditions.

Lord Chief Justice Lord Judge and other prominent legal figures have highlighted these tensions, questioning whether UK courts place undue emphasis on Strasbourg decisions.

Recent Case Law Developments

1. R v. Horncastle

In this case, the UK Supreme Court declined to follow a Strasbourg decision, arguing that the European Court of Human Rights had insufficient understanding of common law procedures.

2. Al-Khawaja and Tahery v. United Kingdom (2011)

The Grand Chamber modified its earlier position, acknowledging that national courts could, in certain circumstances, depart from Strasbourg jurisprudence if domestic legal safeguards sufficiently protect fairness.

A Call for Transparency and Clear Guidelines

Diego F. Soto-Miranda advocates for:

A Judicial Practice Direction: Clearly outlining when human rights claims are appropriate in commercial cases.

Distinction Between Natural and Legal Persons: Ensuring that human rights protections are not mistakenly applied to corporations unless representing natural persons' interests.

Focus on Dignity: Any monetary awards should reflect the protection of human dignity, not merely commercial interests.

Parliamentary Intent & Judicial Discretion

Parliament’s will, as expressed during debates on the Human Rights Act, was to preserve the judiciary's independence. Soto-Miranda references multiple parliamentary records affirming that UK courts are not bound by Strasbourg but should thoughtfully consider its jurisprudence.

Conclusion

The article concludes by reinforcing the need to safeguard judicial independence while avoiding unnecessary litigation based on human rights claims unlikely to succeed. Transparent guidelines distinguishing between natural and legal persons in human rights contexts would reduce wasted resources and protect the core principles of justice.

Diego F. Soto-Miranda is a barrister specialising in commercial, defamation and human rights law. For further insights or to discuss representation, get in touch via email.