Date: Fri, 13 Oct 2006 08:25:34 +0100

From: Robert Stevens

Subject: Horizontal effect argument

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.

Of course there may be circumstances where the lack of a private domestic right places the UK in breach of its Convention rights and the courts should, to the extent that it is within their (domestic law) powers to do so, seek to ensure that we are Convention compliant. If there was no law of private property, it would be necessary to create one. However, it must not be thought that the Convention creates a list of private law rights. It doesn't. It is a list of 'human goods' which it is the obligation of signatory States to secure for its citizens.

The Human Rights Act has changed nothing in this regard. Prior to the Act the courts were mindful of the need to ensure that the condition of English private law did not place the UK in breach of its duties under the Convention. One example is Lord Kilbrandon in Broome v Cassell, but there are many others. The effect of the HRA is to reduce, not increase, the courts need to keep one eye on the Convention as the HRA itself ensures that we are Article 13 compliant. So, for example, if the facts of Z v UK were to recur we are no longer in breach of Art 13 because of the claim the children would have under sections 6-8 of the HRA.

If the (stronger) argument that courts are public bodies and that, therefore, Convention rights have full horizontal effect is a good one, which is the argument Ken O put forward as a runner, why do we have section 3 which requires courts to interpret legislation in accordance with the Convention?

Robert Stevens
Barrister
University of Oxford

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