Date: Fri, 13 Oct 2006 16:51:26 +0100

From: Ken Oliphant

Subject: Horizontal effect argument

-- On 13 October 2006 15:43 +0100 Robert Stevens wrote:

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.

Of course, but this has nothing whatsoever to do with the Human Rights Act which does not, quite deliberately, incorporate art 13. Why not? Because the HRA itself ensures that we are art 13 compliant. The ECHR creates rights against signatory States, not individuals within that State.

Yes. In fact, I was in the process of writing a further response to you making exactly the same point, though by reference to art 1 too (also excluded from the articles "incorporated" into English law).

I thought you'd neglected this in your previous post, when you were saying that the obligation on the contracting state doesn't mean there's the same obligation on the national courts (or words to that effect).

My very point was that I'm focusing on the HRA, not the position under the Convention.

Well, I think the court does not acquire any new right to change the law which it did not have prior to the HRA.

What about HRA s 6(1): "It is unlawful for a public authority to act in a way which is incompatible with a Convention right"?

If applying an existing rule of law would be incompatible with a Convention right, the court has a duty - not merely a right (power?) - to change the law, because the court will otherwise be acting unlawfully.

That's the nub of the argument - which neither you, nor the HL, has yet addressed. I'm not saying it's foolproof. I can see certain ways in which it might be attacked, but I don't want to put up your arguments for you.

But to me, it's got enough plausibility that one can't simply pretend the argument hasn't been made.

once we have rejected (rightly) the 'strong' thesis of horizontal effect, the 'weak' indirect horizontal effect thesis adds nothing to the way the English courts have been behaving since 1950.

Wrong. Prior to HRA the English courts had no duty to act compatibly with the Convention rights, or (I might add) to take into account ECtHR judgments (sec. 2(1)). That they might have done so on occasion is immaterial.

I'll need a hypothetical where the court will take into account the Convention in a way it would not have done prior to the HRA.

One case where it should have done, but didn't (though it discussed the Convention in the "old" way), is Loutchansky [2002] QB 321. Jameel looks like another.

In JD v E Berks [2004] QB 558, the CA relied upon the Act in effectively "overruling" the House of Lords. (Not the type of case I had in mind, but it meets the strict terms of your request.)

The development of the law of nuisance in Dennis v MoD [2003] Env LR 34 was contrary to earlier, binding authority and can only be supported (IMO), if at all, on the basis of HRA s. 6 (though I don't think the judge mentions it).

BTW (to avoid possible confusion) my focus isn't so much on the result the court reaches, but the reasoning by which it reaches that result.

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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