Date: Fri, 13 Oct 2006 18:27:34 +0100

From: Robert Stevens

Subject: Horizontal effect argument

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.

Again, that pre-supposes the power to do so. The courts can no more change the common law in a way in which they have no power to do, than they could simply dis-apply a UK statute on the basis that it required them to do something incompatible with the Convention.

If the courts cannot act in the same way as a legislature, and they cannot, the HRA doesn't confer upon them this power.

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 don't agree. The English courts are part of the UK State, which is a signatory of the ECHR. The English courts were not taking the ECHR into account because they thought it might be nice to do so, or on a whim. Indeed, it is difficult to imagine what they could have thought they were doing taking the ECHR into consideration if they didn't think they had a duty to do so. How could it possibly have been relevant if they had no such duty? There was no choice involved, nor could there have been. The Act adds nothing to this.

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.

Why?

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.)

No. The way in which the CA in JD took into account liability under the Act, not it must be stressed the substantive Articles of the Convention, was quite different. Because sections 6-8 of the Act imposed a liability upon the local authority, the policy argument in the HL that the imposition of liability at common law would impose a perverse incentive to behave defensively fell away, as such liability was imposed by the Act. Because of the Act (not the Convention) a policy argument which underpinned a decision at common law fell away. This is not therefore an example of the indirect effect of Convention Rights at all. The CA did not refuse to follow X because it (the court) was a public authority which would be behaving unlawfully if it refused to do so.

Indeed there would, today, be no violation of the Convention merely by virtue of the fact that there was no redress at common law where children are negligently taken into care, as there is now redress under the Act, so that we are now art 13 compliant. The complaint in TP v UK that there was a violation of article 8 when children were negligently taken into care would be made out regardless of whether or not there was a right at common law which precisely mapped the Convention right. JD is not therefore an example of the indirect effect of the Convention, but rather of the direct impact of imposing liability on the local authority by sections 6-8 of the HRA.

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.

OK, I'll focus on the court's reasoning too. It simply does not follow that because something constitutes an infringement of someone's Convention rights that it should also constitute an infringement of a right at common law. Buckley J, to his credit, says no such thing and does not treat the HRA as relevant in any way to the claim in nuisance.

Robert Stevens
Barrister
University of Oxford

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