The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?

Published date01 November 1999
Date01 November 1999
DOIhttp://doi.org/10.1111/1468-2230.00240
The Human Rights Act, ‘Horizontal Effect’ and the
Common Law: a Bang or a Whimper?
Gavin Phillipson*
The extent to which the Human Rights Act (HRA) will have any ‘horizontal
effect’, that is, impact on the legal relations between private juristic persons, has
already been recognised as perhaps its most problematic aspect.1It is also of course
an issue of potentially great importance. If the more maximalist interpretations of
the Act’s horizontal effect so far put forward are accepted by the UK judiciary, the
effect on private common law2could be drastic: as La Forest J put it in relation to
the same issue under the Canadian Charter in the seminal case of Dolphin
Delivery,3whole areas of settled private law would have to be re-opened.4In the
literature this debate has so far generated, a consensus seems to have emerged that
the inclusion of the courts within the definition of public authorities which are
bound not to act incompatibly with Convention rights5is crucial in this regard. It is
the contention of this article that the meaning of this admittedly key provision has
so far been subject to insufficiently detailed analysis, nor considered in the context
of the Act as a whole. This is partly because, as will be suggested, its meaning has
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
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* School of Law, University of Essex.
An earlier draft of this article was given as a paper of the same title at the Media Law Section of the 1998
Annual SPTL conference, Human Rights and Legal Traditions held at Manchester University. I would like
to thank Eric Barendt, Helen Fenwick and Conor Gearty in particular for their useful responses to the paper
and David Feldman, Colin Warbrick, Maurice Sunkin and Geoff Gilbert for their very helpful comments on
an earlier draft of this article. Any remaining errors – and of course the article’s conclusions – remain my
own responsibility.
1 A fair amount of literature has so far been generated: reference will be made in this article to four
pieces in particular: Sir William Wade, ‘The United Kingdom’s Bill of Rights’ in Hare and Forsyth
(eds), Constitutional Reform in the United Kingdom: Practice and Principles (Oxford: Hart, 1998);
M. Hunt, ‘The Horizontal Effect of the Human Rights Act’ (1998) PL 423; B. Markesenis, ‘Privacy,
Freedom of Expression, and the Horizontal Effect of the Human Rights Bill: Lessons from Germany’
(1999) 115 LQR 47; I. Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from
the Commonwealth?’ (1999) 48 ICLQ 57. See also R. Singh, ‘Privacy and the Media after the Human
Rights Act’ (1998) EHLR 712; S. Grosz, ‘Privacy and the Human Rights Act’ in M. Hunt and R.
Singh (eds), A Practitioner’s Guide to the Impact of the Human Rights Act (Oxford: Hart, 1999); J.
Cooper, ‘Using the Human Rights Act against non–State Actors: The Horizontal Application of
Human Rights Standards’ in JUSTICE, The Human Rights Act and Common Law (JUSTICE seminar,
25 September 1998). Reference will also be made to the views of Conor Gearty, expressed atthe 1998
SPTL conference referred to above, both in his brief paper, ‘The Human Rights Bill and the Common
Law’ (delivered in Panel Session II of the Plenary Session on 9 September) and during subsequent
discussion.
2 This phrase will be used throughout as a convenient shorthand for common law governing the
relationships between private individuals and organisations, including corporate bodies.
3Retail Wholesale and Department Store Union Local 580 et al vDolphin Delivery Ltd (1985) 33 DLR
(4th) 174, 262–63. Similar concerns were expressed by Ackerman J in the decision of the South
African Constitutional Court case on the horizontal effect of human rights under the Interim
Constitution: Du Plessis and Others vDe Klerk and Another 1996 (3) SA 850, 900. Both decisions
are considered further below at various points.
4 See K. Ewing’s reference to those ‘more extravagant claims’ that the HRA will have a ‘spectacular’
impact on the common law (‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR
79, 90).
5 HRA s 6(1) reads ‘It is unlawful for a public authority to act in a way which is incompatible with a
Convention right’; s 6(3)(a) provides that courts and tribunals are included within the definition of
public authority.
wrongly been seen as fairly self-evident, but also because much of the literature
has had somewhat different and in some cases wider concerns than this article.
Thus some has been primarily comparative in approach6and/or has devoted
considerable attention to the normative aspects of the issue,7while one major piece
has looked at the whole range of possible horizontal effects the Act may have.8
Furthermore, the various contributors in this area have essayed little, if any, critical
engagement with each other’s work.9This article will focus exclusively upon the
extent to which private common law will be affected by the Act10 and will attempt
to delineate more precisely than so far attempted the different possible degrees of
force Convention rights may have in the private sphere through a limited incursion
into interpretative theory. Using this analysis, it will attempt to shed fresh light on
this difficult area through consideration of various matters concerning the Act
itself, its debate in Parliament, and Convention jurisprudence which, it will be
suggested, have not yet received sufficient consideration. This will involve direct
engagement with perhaps the most influential and thorough interpretation of the
horizontal impact on common law so far put forward (that of Murray Hunt) as well
as the views of other commentators. The argument will be that the extent of any
horizontal impact on the common law is a matter of greater uncertainty than this
analysis suggests, but will probably be markedly less than some have predicted.
The enquiry is limited to the impact on the common law – with particular
reference to the area of privacy – for two main reasons. First of all, while the Act
makes no mention of any form of horizontal effect under the Convention, it
appears clear that section 3,11 requiring legislation to be interpreted in a way which
is compatible with Convention rights, will apply to all legislation, whether public
or private in nature.12 By contrast, the Act compounds its silence on horizontal
effect by a complete absence of any reference to the common law. Thus, the Act’s
impact on the common law governing relations between private persons is prima
facie its area of greatest obscurity. Secondly, the Act’s possible impact on the law
– or lack of it – upholding a right to privacy against private bodies, and the
consequences this may have for media freedom has been one of its most
controversial aspects, constituting a primary focus of concern in Parliament and,
predictably, dominating media discussion of the Act.13 Since such law as there is in
6 Thus the bulk of Markesenis’ article (n 1 above) consists of analysis of German Constitutional Court
decisions; Leigh devotes a long section to analysis of Canadian, South African and New Zealand
decisions (n 1 above, 62–71). Hunt, n 1 above, 429–435, similarly includes substantial analysis of
Commonwealth jurisprudence; Hunt’s analysis of the position under the HRA is in fact taken from a
dissenting judgment in Du Plessis.
7 Hunt, n 1 above, 424–426; Markesenis, n 1 above, 74–84.
8 Thus Leigh (n 1 above) looks at six possible types of horizontal effect of which only three are relevant
to this article.
9 Markesenis expresses broad agreement with Hunt’s analysis without going into detail (n 1 above, 73);
Gearty, Singh, Grosz and Cooper arrive at similar conclusions (n 1 above); Leigh mentions Hunt only
briefly in his final footnote (n 1 above, at n 126) but arrives at a different conclusion (see 82–83).
10 Its concern is therefore with the position of those bodies found to fall clearly in the private realm, not
with the public/private divide itself, governed by the definition of ‘public authority’ in ss 6(1), 6(3)(b)
and 6(5)), discussed HL Deb vol 582 cols 1277, 1293–1294 and 1309–1310 3 November 1997, and
ibid vol 583 cols 771–811 24 November 1997.
11 ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and
given effect in a way which is compatible with the Convention rights’ (s 3(1)).
12 There was no suggestion by any Government spokesperson during the passage of the Bill that this
section applies only to legislation of a ‘public’ nature. See also I. Leigh, n 1 above, 75–76. Some of
the arguments canvassed below in relation to the common law may in fact have some relevance to the
Act’s horizontal statutory effects.
13 The concerns of the media led the Government to add a wholly new clause to the Bill at Committee
stage in the Commons (see n 25 below).
November 1999] The Human Rights Act and the Common Law
ßThe Modern Law Review Limited 1999 825

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