|
Date: Fri, 13 Oct 2006 13:06:11 +0100 From: Ken Oliphant Subject: Horizontal effect argument
I was going to answer, Yes it does!, but I suppose it depends on what you mean. If you mean (1) domestic law must independently recognise "rights" of exactly the same content as the Convention rights (which you don't accept are "rights" at all), then of course you're correct. But if you mean (2) that domestic law need not - through whatever combination of measures/provisions - provide adequate protection for the full set of Convention rights, then you're wrong. If an aggrieved person cannot pursue an effective remedy for violation of his Convention rights through the domestic courts (or any "national authority") then that constitutes a further violation of his art 13 rights. I think your "no domestic right but no ECHR violation" scenario is a bit of a red herring. What I'm talking about is the duty of courts hearing claims that there's been a violation of a Convention right (whether that's said to be actionable in itself or merely to warrant the adaptation of an existing domestic remedy). As I said before, I agree with you that (to use your words) "the HRA removed the pressure to develop the common law." I would qualify this only to add the words "some of" before your "the pressure". My point is different. HRA s 6 puts a duty on the courts to act compatibly with the Convention rights. If the current domestic law is incompatible, then applying it may (I'm willing to concede it may not necessarily) be a breach of that duty. Your argument that the HRA relieves the pressure here is not a complete answer, because the only remedy it provides is against a public authority. The case in front of the court, by contrast, may involve only private parties. What in the Act says that the court, in deciding the case, may act incompatibly with the Convention rights of one of the parties so long as it is merely applying existing law? Take a concrete (well hypothetical concrete - you know what I mean!) example. Imagine a world without Courts and Legal Services Act 1990, s. 8(2) - enabling CA to substitute its own calculation of the damages for that of the jury in a defamation case. In an action against an amateur historian, Count X alleges he's been falsely and wrongfully accused of war crimes in the historian's book. The jury agrees and awards him £1.5 million (cf. Tolstoy v Aldington, unreported). The historian appeals and argues in the CA that the award was a disproportionate restriction of his freedom of speech, even though the aim was legitimate, viz. the protection of X's right to reputation (cf. Tolstoy v UK (1995) 20 EHRR 442)). How should the Court approach the issue? Should it (1) say this is just a matter of domestic law, and as only private parties are concerned HRA has nothing to do with it? Or (2) consider itself under a duty at least to consider whether, to ensure the compatibility of its decision with X's Convention rights, it should develop the existing domestic law? (If developing the existing law would involve creating excessive uncertainty, or usurp the function of the legislator, then (IMO) refusing to do so would involve no incompatibility with X's Convention rights.) I just cannot see any good reason to opt for answer (1) - though I predict that that will in fact be Rob's answer ...
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»