Date: Mon, 16 Oct 2006 11:45:08

From: Ken Oliphant

Subject: Horizontal effect argument

Hector:

Do you think that the courts have an obligation to review the Wainwright approach even where the defendant is a private individual?

Ken

-- On 16 October 2006 12:04 +0100 Hector MacQueen wrote:

My view of this, Robert, would be that you are drawing an un-necessary distinction between domestic and Convention law. The whole point of HRA is to domesticate Convention rights, and as I see it the horizontal effect of the Act is such that the courts have to use the traditional techniques of developing the common law to meet the standards of the Convention, just as they have to read statutes. In Wainwright BOTH the prison officers AND, crucially, the state (through both the prison and the judicial systems) are infringing Article 8; the state, including the courts, has an obligation to put that right. I don't quite know how the English courts will manage it; but it seems clear to me that the ECtHR has in effect over-ruled the House of Lords, and it is now down to the creativity of the common law to produce a solution if the legislature will not. One way, as I said in my previous, would be to take the privacy principles now emerging pretty clearly from the extended breach of confidence cases and apply them in the physical intrusion cases of the Wainwright and possibly Watkins kind.

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

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