Date: Thu, 12 Oct 2006 19:34:16 +0100

From: John Murphy

Subject: Horizontal effect argument

I'm not sure things are as clear-cut as Robert suggests. It all seems to me to depend on what one means by "horizontal effect". If one subscribes to the view that it means that the English courts are now obliged to create brand new rights so as to come into line with the Convention, then I think Rob is right: his private right to property example is a good one.

If, on the other hand, one means by horizontal effect something a bit more subtle - namely, that in areas of ambiguity the courts ought to decide cases mindful of Convention rights - then there may be something to be said for what Ken suggests.

It could be argued, for example, that since the Act specifically requires the courts to interpret ambiguous legislation in a way that is in tune with the Convention, their general duty to act in a way that is compatible with the Convention ought to be seen as embracing (implicitly) a similar obligation with respect to ambiguous extant rules of common law. Without such an implied duty, one might well ask why the courts must take one approach to an obscure statute but not an obscure common law rule.

John Murphy

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