Date: Fri, 13 Oct 2006 12:10:53 +0100

From: Robert Stevens

Subject: Horizontal effect argument

3. The intermediate position: indirect horizontal effect, which has attracted strong support in the literature (eg Murray Hunt [1998] PL 423 and Jane Wright, Tort Law & Human Rights, p 23). Without going so far as to recognise new "torts" of breach of Convention rights, availing private individuals against private individuals, the courts still have a duty to develop the law incrementally to protect the litigants' Convention rights, though taking into account "rule of law" constraints on their doing so (e.g. "the measure of certainty which is necessary to all law": Douglas v Hello (No 1) [2001] QB 967, 1002 per Sedley LJ). This approach was followed by Baroness Hale in Campbell v MGN Ltd [2004] UKHL 22 at [132], but the other members of the House - there and in other cases - seem to be wholly ignorant that there is such an argument.

The Convention does not require a set of private domestic rights which correspond with Convention Rights. Take, for example, the right to education. If a signatory State makes adequate public provision for education, the State will be compliant. there is no need to create a set of private rights which maps the Convention rights. Conversely, if someone is in fact tortured this will violate their Convention right not to be tortured. It does not matter that there is a domestic law also prohibiting torture. Conversely, if torture is lawful but no one is in fact tortured, no one's Convention right not to be tortured is violated. The existence of a private right not to be tortured is neither a necessary nor sufficient condition of being Convention compliant.

The Convention does not require that private rights are developed which map on to Convention rights. So, the commonly held, view that the Convention right to privacy/family life requires the incremental development of common law rights, such as the right to private information, so as to correspond with the Convention right is incorrect. There are other ways a State can protect this human good.

Of course it is possible for (private) law to be so defective that this itself constitutes a violation of the Convention, but the attitude of the courts in seeking to ensure that the common law is Convention compliant does not substantively differ pre or post the HRA. Indeed the HRA removed the pressure to develop the common law, as the HRA itself ensures that we are Art 13 compliant. The HRA makes the ECHR less, not more, important in the development of the common law.

Robert Stevens
Barrister
University of Oxford

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