Date: Sun, 15 Oct 2006 11:49:58 +0100

From: Robert Stevens

Subject: Horizontal effect argument

Sorry for boring everyone, especially those from outside this sceptered isle.

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.

This is just the 'strong' thesis again. If it is really correct that the Act in saying that the court's must act lawfully gave the court's a new power to overturn law's which are incompatible with the Convention, this would include the power to create new causes of action against State bodies and to overturn legislation which is not Convention compliant. If this was true, sections 3, 6, 7 and 8 of the HRA would be otiose.

This is not Murray Hunt's 'weak' thesis who makes it clear that he does not think that any such new law-making power has been conferred. The CA could not overturn a HL decision it thought incompatible with the Convention on the basis of the HRA. The court's duty, like that of all public bodies, is to act compatibly with the Convention to the extent that it has power to do so.

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

Never, I hope, because the English courts do not have the power to act in this way. They are not mini-legislatures.

Robert Stevens
Barrister
University of Oxford

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