Date: Fri, 13 Oct 2006 19:05:13 +0100

From: Ken Oliphant

Subject: Horizontal effect argument

Others may be tiring of our exchange ... If so, we can always take this offline ...

Too late on a Friday to answer everything, so I'll leave the case examples till another time.

In response to Rob's points:

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.

If the statute places the court under a duty to act, the power to act is implied.

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.

That is not what the English courts said they were doing. They had recourse to the Convention, if at all, only as a "tie-breaker". Most often, they addressed the question as a matter of common law alone, then concluded - "with satisfaction" - that this was consistent with the Convention. What HRA requires them to do is very different: act compatibly (or not incompatibly) with the Convention rights in every case.

How often, pre-HRA did the courts change the common law expressly because it was incompatible with the Convention?

Over and out for tonight!

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

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