Date: Thu, 12 Oct 2006 18:53:52 +0100

From: Robert Stevens

Subject: Jameel

One thing that struck me, though, is that the HL has yet again decided a human rights case with absolutely no mention of the argument that the Convention rights have horizontal effect attributable to the court's duty as a public body to act compatibly with those rights (HRA s 6(1) and (3)). Does anyone else find this as puzzling as I do?

I don't find it puzzling as it is a hopeless argument (with all due respect to the dear departed).

The statutory right under ss 6-8 that public authorities act in compliance with Convention Rights makes it clear beyond argument that the Act is not intended to make Convention Rights directly effective between persons generally.

Consider the right to peaceful enjoyment of possessions (First Protocol Article 1). Does the Human Rights Act create a new unitary private right to property alongside our currently existing property law? So alongside English law's diverse set of rights recognised in torts such as conversion or trespass to land etc have we a new single private right to property in general, good against everyone? Obviously not.

It is neither a necessary nor a sufficient requirement for a signatory State to be Convention compliant that it has private domestic rights which track those under the Convention.

Now at one time there was an incentive on English courts to develop new private common law rights against public bodies because without some method of redress against the State for the violation of a Convention Right which was available to an individual before the domestic courts, the UK would be in violation of Article 13 of the ECHR. However the Human Rights Act itself now makes the UK Article 13 compliant, at least where a public authority defendant can be identified for the purposes of the statutory tort created by ss 6-8 of the HRA. The children in Z v UK, for example, would now have a claim under the HRA. As a result the incentive to expand the common law in order to be Convention compliant has now gone.

The net long term result may therefore be that the HRA will reduce, not increase, the pressure to develop the common law in order to reflect the ECHR. Convention Rights have already been 'brought home.' It seems to me pretty clear from Wainwright v Home Office what the court's attitude will be if someone tries to run the horizontal effect argument.

Robert Stevens
Barrister
University of Oxford

<<<< Previous Message  ~  Index  ~  Next Message >>>>>