Horizontal Effect of Human Rights Act

The Human Rights Act 1998 (hereinafter H.R.A) received the Royal Asset and became law on 9 November 1998, the main provisions came into force on 2 October 2000. [1] H.R.A is incorporation with European Convention on Human Rights (hereinafter ECHR), and gives domestic effect to rights and Fundamental Freedoms of the ECHR. H.R.A makes available in the UK courts as a remedy for breach of a Convention right, without need to go to the European Court of Human Rights in Strasbourg. [2] One of the most important issues which arise when any legal system adopts by legislation (a charter of fundamental rights) is what will be the scope of application of that legislation. [3] Will H.R.A have only “vertical effect” and protect citizen only against the misdeeds of public authorities, or will it also have “horizontal effect” and so protect private citizens against one another? [4] Whether H.R.A has any “horizontal effect” or not has become one of most analysis and speculation subject. [5]

This literature review to explore the idea of ‘horizontal’ application of the Human Rights Act 1998, and presents the findings of the review and reflect of the applications.

II. Possibility “Horizontal Effect” of H.R.A

Some authors believe H.R.A retains characters from ECHR and Strasbourg. The fact that true horizontal effect does not occur in Strasbourg, in which ECHR includes positive obligations on states to protect individuals against each other, “but the only defendants at Strasbourg are states and the only remedies a claimant has are against the state”. [6] Nevertheless Thomas Raphael certifies that there is no guarantee that those positive duties will remain the same as under the Convention. The English court is not obliged to mirror the Convention; the English courts could develop a more demanding view of their positive duties than the Strasbourg court. [7] By the same fact but different analysis Richard Buxton conclusively acknowledge E.C.H.R. are not rights against other citizens, so is that Convention right under H.R.A which retains the character must only against public bodies and not against a private subject. [8] In other words H.R.A cannot have “horizontal effect”. To that idea H.R.W Wade strongly contests:

“Of course it is true that before the Human Rights Act the Convention rights could exist only in the form of government obligations. This is because there was no other possibility, not because the rights were inherently inapplicable between private citizens. Nor does there seem to be any reason why their secondary attributes, such as their scope and their enforcement procedures, should remain the same when they are translated into domestic law. Indeed, it would be very surprising if they remained the same, since they could hardly undergo a more drastic transubstantiation than from an international convention into an Act of Parliament.” [9]

Most of the authors agrees although the primary effect of H.R.A applies to public authorities, its structure have possibility of horizontal effect. The reason is because section 6 of the H.R.A [10] defines courts and tribunals as public authorities. Accordingly their judgments or their order must compatible with Convention rights even when an action is a private one between two citizens, except in cases of declarations of incompatibility. Since H.R.A does not confine this duty to cases involving public authorities, the logical implication is that section 6(1) requires a court to give judgement in a way which compatible with Convention rights in all cases. [11] It might seem to follow that the courts must protect the Convention rights of an individual party in any legal proceedings from infringement by public authority or by private person. [12] In this respect of Convention rights would have horizontal effectiveness in the case between private persons as well as being vertically effective against public authorities. [13]

Nevertheless, Nicholas Bamforth believed that actually section 3 of H.R.A which provides the true statutory basis for any “horizontal effect”. He indicates that the other authors (Buxton and Wade) focus exclusively on section 6 of H.R.A, and ignoring section 3. [14] Under section 3 courts are free to interpret legislation in the light of Convention rights. The courts interpretative obligation, is applicable to all legislation, even in cases involving private persons only (as in Ghaidan v godin-Mendoza (2004) UKHL, 30, (2004) 2 AC 557, chapter 2). [15]

More comprehensive about possibilities of “horizontal Effect” H.R.A, Ian Leigh show several potential forms of horizontal effect that arise, include the following “direct statutory horizontality”, “public liability horizontality”, “intermediate horizontality”, “remedial horizontality”, “indirect horizontality” and “(direct) horizontality”. [16] We can see application of those form to privacy, The implications for privacy are that the most obvious ways in which legal protection may be strengthened following incorporation are via direct statutory horizontality and in protection by public bodies in their civil capacity–public liability horizontality (subject to the private functions argument). [17] Section 6 will impact directly on the courts’ grant of discretionary remedies in private litigation and public authorities such as the police and broadcasting regulators may be required to protect one private individual against another, for example by having regard to respect for a person’s private life under Article 8, or free speech under Article 10, and so to give higher priority to protection of privacy (intermediate and remedial horizontality). [18]

The question about “horizontal effect” was considered by the court of Appeal in the initial (inter locutary) proceedings in Douglas v Hello Ltd (2001) QB 967 in relation to the rights to respect for private life/privacy (Article 8) and freedom of expression/freedom of press (Article 10). [19] One of the judges Sedley L.J. said, “This is not the place, at least without much fuller argument, in which to resolve such a large question (as horizontal effect)”. [20] On other side Brooke LJ noted that while Article 8(1) appeared on its face to create a free-standing (horizontally effective) right, Article 8(2) and the general purport of the HRA seemed to contemplate that the right should be enforceable only against public authority. [21] This dilemma, he thought, might be resolved by taking account of the positive duty placed by the convention. [22] Also in Campbell v MGN, Baroness Hale stated “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.” [23]

III. “Direct” and “Indirect” Horizontal Effect of H.R.A

The next lively debate in the law journal associated to “horizontal Effect” of HRA is arguments about “direct” and “indirect” horizontal effect. The terms “direct” and “indirect” have caused some confusion. In his article Thomas Raphael define “direct” horizontal effect means the situation where a private defendant would be liable to suit under the causes of action and remedies expressly created by the Act, such as section 7(1). “Indirect” horizontal effect means any other form of alteration in the legal relations of private parties. [24]

M. Hunt argued that the supposed choice between a wholly “vertical” and a “direct horizontal” approach to the reach of fundamental rights legislation was a false one, and in fact there is a spectrum of possible positions between those true extremes. [25] In the view of M. hunt this claim that H.R.A achieves full or “direct horizontal effect” for Convention rights is unsustainable. It is plainly inconsistent with the scheme of H.R.A. It is directly contrary to the explanation of its effect which was given by the ministers promoting it during its passage, and it does not pay sufficient need to the nature of Convention rights themselves. The article concluded that H.R.A achieves a significant degree of “horizontal effect”, going significantly beyond the “indirect effect”, but fall short of being directly horizontally effective, because it will not confer any new private causes of action against individuals in respect of breach of Convention rights. [26]

William Wade states that the Convention rights will have direct horizontal effect. He believes the court must be the effective agent in all cases. Whether this is called direct or indirect effect or a new cause of action seems to be a matter of words and to make no intelligible difference. [27] The effect of making courts “public authorities” who are obliged to act compatibly with the convention is that private individuals and bodies are subjected to the Convention rights, which can be enforced directly against them through the courts. [28] So far William Wade is the only author who takes extreme view that H.R.A “have direct horizontal effects”.

Dawn Oliver although try to avoid entering the debate, at a matter of fact take a stand and refer to this as “indirect horizontal effect”. She proceed on the basis that the courts will, as anticipated by the Lord Chancellor as the bill was passing through Parliament, interpret legislation compatibly with the Convention, and develop the common law and equity incrementally to protect parties against what would be breaches of the Convention rights if done by public authorities or in the exercise of public functions, where the acts have been done by private bodies who are not exercising public functions. [29] Another opinion from Gavin Phillipson with ‘Weak’ “indirect horizontal effect”: In the case an individual aggrieved by the actions of another may not claim that the state has failed to prevent his ‘right’ from being infringed by a private individual: indeed on this view it is not just that citizens may not sue each other directly for breach of the constitutional rights; rather citizens have no rights against such persons. The claim instead is that the courts should apply and develop existing law in the light of the values represented by any applicable constitutional rights, in recognition that the actions of private individuals can produce similar or identical effects or harms to those of governmental bodies. [30]

IV. Conclusion

To conclude, the fact that H.R.A makes no mention of any form of horizontal effect under the Convention, it seems there will always be debate and speculation about this topic. Nevertheless, recent improvement based on debates and the current practice of courts, points irresistibly towards the Human Rights Act being interpreted as applying the Convention to all law, including the common law applicable in private disputes, and therefore being horizontally applicable to a significant degree. [31] In the light of these review, it is hopefully that Convention rights can experience a broader application in domestic law than is possible before.

1,997 Words