Date: Mon, 16 Oct 2006 09:38:12 +0100

From: Robert Stevens

Subject: Horizontal effect argument

Sorry to return yet again but this is really important.

But now the European Court of Human Rights has told us that the Wainwright decision is itself an infringement of Article 8.

No. The conduct of the prison officers constituted a violation of Article 8, the decision of the House of Lords did not. The domestic LAW of England at that time violated article 13. If there had been no HRA, therefore, the courts would have been under pressure to develop such a claim. Now, if the same facts were to recur today there would be no article 13 violation because of the HRA. The acts of the prison officers would still constitute a violation of article 8, but that will be so regardless of what the domestic law is. The prison officers violation of art 8 does not require any change to English domestic law.

Since the HRA requires the English courts at least to take note of ECtHR jurisprudence, it is now presumably open to the House of Lords to over-rule Wainwright, if indeed it is still binding

This is always a possible, of course, but only if Wainwright is wrong as a matter of domestic law. The E Ct HR decision in Wainwright certainly does not require Wainwright v Home Office to be overturned.

Then perhaps the Watkins-type claimant wouldn't be forced into the wrong form of action in the effort to realise his or her rights.

Well, I tend to agree that Watkins was not argued in the way it should have been. See the LQR.

In my view it doesn't matter very much whether you have a strong or a weak horizontal effect - the end result will be the same, just more slowly achieved if the weak version is followed. I think the courts have been quite canny in not getting into that particular debate.

It matters a lot: see the above analysis of Wainwright v UK. It is not the case that a finding of a violation of art 2, 3 ,4, 5, 8, 9, 10, 11, 14, 16 and many others, necessarily also means that the domestic law itself also constitutes an ECHR violation.

Robert Stevens
Barrister
University of Oxford

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