Horizontal Effect and the Constitutional Constraint

Publication Date01 Nov 2011
AuthorAlexander Williams,Gavin Phillipson
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00876.x
Horizontal Effect and the Constitutional Constraint
Gavin Phillipson and Alexander Williams*
This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the
Human Rights Act imposes on the courts to give horizontal effect to European Convention rights
through the common law.The model requires courts to developthe common law compatibly with
the Convention,but only where compatibility can be achieved by incremental development.We
argue that models requiring more than incremental development are unsustainable; that deep
constitutional norms compel the constraint of incrementalism, which is preserved under the
HRA; and that byvir tue of section 2 of the HRA,Convention rights function as principles rather
than hard-edged rights in this context. This further undermines the idea that the courts must
strictly apply Convention rights and cannot allow them to be overridden by non-Convention
factors.The final section explores the nature of incrementalism in this context and the impact of
the model on the doctrine of judicial precedent.
INTRODUCTION
Over a decade after the entry into force of the Human Rights Act 1998 (HRA),
it is a remarkable fact that the judges have failed to reach a consensus on the
nature and extent of the courts’ duty to give horizontal effect to European
Convention rights in domestic common law.1Academic writers similarly seem
unable to agree.This ar ticle draws on the insights generated by the substantial
academic debate so far to offer a new view of the courts’ duty – the ‘constitu-
tional constraint’ model – and to defend it against views which we believe to be
mistaken and which have not yet been fully considered by courts and academic
writers.2The model can be summarised in a single proposition: the courts must
*Respectively, Professor and Lecturer in Law, Durham Law School, University of Durham. Earlier
versions of this paper were delivered by Gavin Phillipson at Obligations V: Rights and Private Law St
Anne’s College, Oxford, 14–17 July 2010 and byAlexander Williams at the SLSAnnual Conference at
Southampton University, 14 September 2010.We are grateful to the participants in both conferences for
many helpful comments.We have both benefited enormously from discussions with David Hoffman
and AlisonYoung, in particular,in relation to the ‘three levels’of horizontal effect we propose here.The
latter is an idea that Gavin Phillipson has also briefly expounded, withYoung and Hoffman, in the
Introduction to D.Hoffman (ed), The Impact of the UK Human RightsAct on Private Law n 1 below.Many
thanks to Roger Masterman for his very helpful suggestions on an earlier draft, and also to the
anonymous referees, whose comments enabled us to improve the piece substantially. The usual dis-
claimer applies.
1 The absence of a judicial consensus and the wide range of views expressed by members of the
judiciary on the point are now too well known to require evidencing here. For analyses and
critique, see G. Phillipson,‘Clarity postponed: horizontal effect after Campbell’ in H. Fenwick, G.
Phillipson and R. Masterman (eds), Judicial Reasoning under the UK Human RightsAct (Cambr idge:
CUP, 2007); and G. Phillipson,‘Privacy and Breach of Confidence: the Clearest Case of Hori-
zontal Effect?’ in D. Hoffman (ed), The Impact of the UK Human Rights Act on Private Law
(Cambridge: CUP, 2011, forthcoming) (Hoffman).
2 We do not address the related issue of ‘statutory’ horizontal effect arising as a result of the courts’
interpretive obligation under HRA,s 3 (see eg XvY[2004] EWCA Civ 662, [2004] ICR 1634
[57(2)]).
© 2011The Authors.The Modern Law Review © 2011 The Modern Law Review Limited.(2011) 74(6) MLR 878–910
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
develop the common law compatibly with the Convention,but only where such
development can be achieved by ‘incremental’ development. 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 norma-
tive 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.3Our 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.4
The article proceeds in four main steps.The first par t sketches the basic legal
issues and the academic debate so far, and explains why it considers that stronger
models of horizontal effect, including the outlying position known as ‘full’
horizontal effect, are unsustainable.The second part introduces the constitutional
constraint model and defends it by reference to some core features of the HRA
and constitutional principles.The third part considers the hor izontal applicability
of the Convention rights themselves and makes two distinct arguments: first,that
the practical potential for such applicability is more limited than many have
argued and/or already catered for in domestic law; and second, that any obliga-
tion to apply the most significant rights in this context manifests itself in practice
as an obligation to apply only Convention principles,since the more concrete rules
derive from the Strasbourg case-law and therefore remain non-binding. This
significant distinction – between the force and effect of the Convention rights
themselves, on the one hand, and their associated jurisprudence, on the other –
has been neglected in the academic debate on horizontality thus far. Finally, the
article goes on to expound the constitutional constraint model, explaining more
fully the meaning of ‘incrementalism’ and the effect of the model on the critical
issue of common law precedent.
THE DEBATE SO FAR: DISPOSING OF OVERLY STRONG MODELS
Some key distinctions and a summary of the debate
The crucial distinction between ‘direct’ and ‘indirect’hor izontal effect should be
clarified at the outset. As Stephen Gardbaum has observed,5rights take ‘direct’
horizontal effect if they are vindicated by a cause of action vested against private
3 J. Morgan,‘Questioning the “true effect”of the Human Rights Act’ (2002) 22 LS 259,260–61; S.
Pattinson and D. Beyleveld,‘Horizontal applicability and hor izontal effect’(2002) 118 LQR 623,
664.
4 For the most recent analysis, see Phillipson,‘Pr ivacy and Breach of Confidence’,n 1 above.
5 S. Gardbaum,‘Where the (state) action is’ (2006) IJCL 760, 764.
Gavin Phillipson and AlexanderWilliams
© 2011 TheAuthors. The Modern Law Review © 2011The Modern Law Review Limited. 879(2011) 74(6) MLR 878–910
persons.‘Indirectly’ horizontal rights, by contrast, apply not to persons but only to
existing law. Section 6(1) of the HRA merely states that ‘It is unlawful for a public
authority to act in a way which is incompatible with a Convention right’ in
domestic law.6On its face therefore, the Act excludes the direct horizontal effect
of Convention rights against private bodies such as newspapers, landlords and
employers, because such bodies are not themselves bound by the Act to respect
those rights.7The courts themselves are public authorities however,8and there-
fore are bound to comply with the Convention – even, seemingly,when devel-
oping the common law in disputes between private parties. Thus the HRA
appears to envisage some, albeit indirect, role for Convention rights in common
law litigation between private parties,9although the bare text of theAct leaves the
extent of this role unclear: no provisions deal explicitly with the application of the
rights to private law, while the common law goes wholly unmentioned.Those
who believe the HRA to place an unlimited duty on the courts to develop the
common law so as to give effect to the Convention espouse what is usually
termed ‘full’ indirect horizontal effect. ‘Direct’ and ‘full’ horizontal effect are thus
conceptually distinct legal mechanisms, even though they achieve the same results
– new rights-based causes of action against private individuals – in practice, and
even though they are often referred to interchangeably by commentators.
In the academic debate so far, Sir William Wade has advocated full indirect
horizontal effect, arguing that the courts’ duties as public authorities require
them, if necessary, to fashion brand new rights-based causes of action between
private individuals to ensure that their Convention rights are fully vindicated in
the common law.10 Despite some apparent flirtation with this view,11 the judges
have not accepted it as a general theory and at times have firmly rejected it;12 it
has also been thoroughly debunked on numerous occasions by commentators.13
The contrary view of denying any horizontal effect at all14 has found no
6 Emphasis added.
7 M. Hunt,‘The “horizontal effect”of the Human Rights Act’ [1998] PL 423,asserts that this is clear
beyond argument (at 428).
8 HRA, s 6(3)(a).
9 This is evidenced by the rejection by Parliament of an amendment to the Human Rights Bill put
forward by Lord Wakeham, which would have had the effect of excluding the courts from the
definition of ‘public authority’when ‘the parties to the proceedings before it did not include any
public authority’ (HL Deb vol 583 col 771 24 Nov 1997).
10 W. Wade,‘Horizons of hor izontality’ (2000) 116 LQR 217.Other defenders of this position are
Morgan, n 3 above, and ‘Privacy,Confidence and Horizontal Effect: “Hello”Trouble’ [2003] CLJ
444; Beyleveld and Pattinson, n 3 above.The views of Morgan and Beyleveld and Pattinson are
considered separately below.
11 McKennit vAsh [2006] EWCA Civ 1714,[2008] QB 73 at [10]–[11]; Re S (A Child) [2005] 1 AC
593 at [23] (Lord Steyn);Murray vExpress Newspapers [2008] EWCA Civ 446,[2009] Ch 481 at [27].
Some commentators have argued that such decisions evince acceptance of‘full’ horizontal effect’;
see N. Moreham,‘Privacy and horizontality: relegating the common law’ (2007) 123 LQR 373;
T.Bennett,‘Hor izontality’s new horizons- re-examining horizontal effect: privacy,defamation and
the Human Rights Act’(2010) 21(3) Ent LR 96 (Part 1) and 145 (Part 2). For a critical response,
see G. Phillipson,‘Privacy and the Development of Breach of Confidence’in Hoffman, n 1 above.
12 Douglas vHello! Ltd (No 6) [2006] QB 125 at [50] (Lord Phillips MR); Campbell vMGN [2004]
2 WLR 1232,[2004] 2 AC 457 at [132] (Baroness Hale) (Campbell).
13 See eg Hunt, n 7 above, and Phillipson,n 18 below.
14 R. Buxton,‘The Human Rights Act and Private Law’ (2000) 116 LQR 48.
Horizontal Effect
© 2011 TheAuthors. The Modern Law Review © 2011The Modern Law Review Limited.
880 (2011) 74(6) MLR 878–910

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