Date: Fri, 13 Oct 2006 15:43:28 +0100

From: Robert Stevens

Subject: Horizontal effect argument

But if you mean (2) that domestic law need not - through whatever combination of measures/provisions - provide adequate protection for the full set of Convention rights, then you're wrong. If an aggrieved person cannot pursue an effective remedy for violation of his Convention rights through the domestic courts (or any "national authority") then that constitutes a further violation of his art 13 rights.

Of course, but this has nothing whatsoever to do with the Human Rights Act which does not, quite deliberately, incorporate art 13. Why not? Because the HRA itself ensures that we are art 13 compliant. The ECHR creates rights against signatory States, not individuals within that State.

Take a concrete (well hypothetical concrete - you know what I mean!) example. Imagine a world without Courts and Legal Services Act 1990, s. 8(2) - enabling CA to substitute its own calculation of the damages for that of the jury in a defamation case. In an action against an amateur historian, Count X alleges he's been falsely and wrongfully accused of war crimes in the historian's book. The jury agrees and awards him £1.5 million (cf. Tolstoy v Aldington, unreported). The historian appeals and argues in the CA that the award was a disproportionate restriction of his freedom of speech, even though the aim was legitimate, viz. the protection of X's right to reputation (cf. Tolstoy v UK (1995) 20 EHRR 442).

How should the Court approach the issue? Should it (1) say this is just a matter of domestic law, and as only private parties are concerned HRA has nothing to do with it? Or (2) consider itself under a duty at least to consider whether, to ensure the compatibility of its decision with X's Convention rights, it should develop the existing domestic law? (If developing the existing law would involve creating excessive uncertainty, or usurp the function of the legislator, then (IMO) refusing to do so would involve no incompatibility with X's Convention rights.)

Well, I think the court does not acquire any new right to change the law which it did not have prior to the HRA. Of course in developing the law the courts will be mindful to ensure that the common law itself does not constitute a Convention violation. However the same incentive was there before the HRA was passed. The courts commonly took this into account (Murray Hunt's book has dozens of examples). I'll need a hypothetical where the court will take into account the Convention in a way it would not have done prior to the HRA. I don't think this is one: the court's task is the same as it was before. I can't think of such a hypo. Put another way, once we have rejected (rightly) the 'strong' thesis of horizontal effect, the 'weak' indirect horizontal effect thesis adds nothing to the way the English courts have been behaving since 1950. So, we are left with the conclusion that the only impact of the HRA itself is to reduce, not increase, the impact of the ECHR on the common law.

Robert Stevens
Barrister
University of Oxford

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