Questioning the ‘true effect’ of the Human Rights Act

Abstract

One of the most important issues arising from the Human Rights Act 1998 is the degree of its applicability, if any, to relations between private individuals. While the wording of the Act itself provides no clear guidance on the matter, and a wide‐ranging spectrum of potential outcomes has been identified, there is an emerging academic consensus that the Act will have some horizontal effect ‐ but limited to enabling development of the existing common law, and not extending to provision of new actions and remedies. This paper seeks to challenge that consensus. Fidelity to the jurisprudence of the European Court of Human Rights requires that the effect of the Act go beyond mere incremental development. There is clear authority that the legal systems of signatory states must provide remedies for infringement of individual rights by other individuals. Nothing in the Human Rights Act 1998 obstructs this interpretation. Further, the paper seeks to identify certain fatal errors in the arguments of the ‘developmental consensus’ .

Horizontal Effect and the Constitutional Constraint

“…Deryck Beyleveld and Shaun Pattinson have advanced the most sophisticated argument in favour of full horizontal effect, in an important article that has not hitherto received a proper reply. We deal below with their arguments as they bear on the interpretation of the HRA .…”

“…Beyleveld and Pattinson's strongest argument appears to lie with the opening words of Article 10(2), which provides that the exercise of freedom of expression, since it ‘ carries with it duties and responsibilities’, may be subject to the limitations it then sets out, such as the protection of the rights and freedoms of others. They argue that these words imply that individuals have a duty not to interfere with other people's Convention rights, that this necessarily recognises those rights to be binding on all those exercising free expression rights, and thus that Convention rights are horizontally applicable . However, the better reading of this mention of the ‘duties and responsibilities’ of speakers is not that it creates legal duties on speakers not to interfere with the Convention rights of others; rather it simply recognises the fact that, at the time the Convention was drafted, the domestic law of the various contracting states already laid numerous duties on speakers, including, for example, duties not to defame others, invade their privacy, or infringe their copyrights.…”

“…We doubt in fact whether Hunt's strong indirect model is best read as standing for this idea, as we explain below. But commentators generally appear to believe that it is, and so for present purposes we consider model (E) as a potentially credible interpretation of the court's duty that is considerably stronger than the constitutional constraint model.…”

“…Our approach in propounding this model offers something new because it analyses both the HRA and the Convention rights in the context of underlying constitutional principles, rather than, as previous articles have done, in isolation from this broader normative backdrop. The model also avoids the weakness inherent in seeking to draw support from ministerial statements made during the passage of the Human Rights Bill through Parliament, something that has left other models open to criticism . Our approach is predominantly normative and analytical, drawing on the broader doctrinal framework set by Strasbourg and the HRA; but our model also squares with what we view as the courts' instinctive approach to the horizontal effect issue to date: while judges have made significant and creative use of the Convention in private common law, they have nevertheless proceeded step by step, without either creating brand new Convention‐based causes of action or instantaneously fashioning existing ones into compatibility …”

<i>Celebrity Big Brother</i>, Human Rights and Popular Culture

“…Citizens" own awareness of their human rights would also be boosted: giving them the ability to enforce their rights "at home" was intended to empower them and make them more rights conscious (Note: I am leaving aside any discussion here of a potential indirect horizontal effect that would enable actions under the HRA between citizens. For a discussion of this topic see Morgan (2002)). Early indications are that the benefits for individual citizens have been rather modest (Clements 2005;Costigan and Thomas 2005) but what about the effect of the HRA on collective legal consciousness?…”