The ‘Horizontal Effect’ of Human Rights in the UK

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Application of the ‘Horizontal Effect’ of Human Rights Law in the UK “The horizontal effect of the application of human rights law in the UK has important implications for the law of tort in relation to protection of privacy for private citizens. However the law is being applied in a piecemeal fashion” - Critically discuss. Introduction: Human rights protect an individual from unwarranted interference by the state, seeking to establish a just social and legal order to enable a person to live a full and productive life, free from fear, tyranny and discrimination and under the rule of law. UK’s accession to the European Convention on Human Rights (1950) and its acceptance of the jurisdiction of the European Court of Human Rights (ECtHR or the Strasbourg court) leading to the enactment of the Human Rights Act 1998 (HRA) to give domestic effect to the Convention rights have had far reaching effects on judicial philosophy, approach and jurisprudence of English courts. This is not to say that common law was oblivious to human rights concerns. In Hertfordshire Police v Van Colle[1] Lord Bingham remarked that it would be surprising 'if conduct which violated a fundamental right or freedom of the individual did not find a reflection in a body of law ordinarily as sensitive to human needs as the common law' but conceded that common law had evolved in a direction indicated by the Convention in areas in which the two overlapped. Given that human rights provisions are aimed at the excesses of the State, this essay discusses the impact of human rights law inter se disputes between two private individuals, particularly in relation to the protection of privacy, which ordinarily falls under the domain of torts at common law. As such, the essay examines the incremental expansion of human rights provisions into the area of private and privacy law and whether or not the application of this new jurisprudence has been consistent over the years. Vertical and Horizontal Effect: The HRA is intended to have a vertical effect, i.e., it is applicable to laws and acts of state authorities affecting the lives of common citizens. Thus, s 3 requires that every primary and secondary legislation whenever enacted must be interpreted ‘in a way which is compatible with the Convention rights’ failing which a competent court can declare it to be incompatible with Convention rights under s 4 prompting a competent Minister to move a Parliamentary amendment under s 10. S 6 prohibits a public authority from acting in a way which is incompatible with a Convention right failing which a ‘victim’ can move the court under section 7(1)(b) and seek compensation/damages under s 8(1) of the Act. Accordingly, Wright states that 'it seems clear that the scheme of the Act precludes direct horizontal effect' in terms of basing a private action purely on a Convention right as the differentiation that the Act makes between public authorities which are subject to the Act and other bodies/persons would then be otiose.[2] However, the justification for a ‘horizontal effect’, at least what is termed as ‘indirect horizontal effect’ is often argued to be through s 6(3) of the Act which proscribes public authorities from acting in a manner which is incompatible with Convention right and includes a court or tribunal. Thus, the argument of academics is that courts are obliged to recognise and give effect to Convention rights even while adjudicating private disputes.[3] Some basis for this position, particularly with regard to tort cases can also be found in the statements of high constitutional authorities. The Lord Chancellor while rejecting an amendment moved by the Chairman of the Press Complaints Commission to remove courts from the definition of public authority stated that while the courts could not play a legislative role and grant new remedies for infringement of Convention rights unless allowed by common law, they did have a duty to act compatibly with the Convention even in cases involving individuals, thereby affording them an opportunity to develop the common law by relying on existing domestic principles in the realm of trespass, nuisance, copyright, confidence, etc. to develop a common law right to privacy.[4] That the courts do not have the authority to carve out new areas of tortious liability and causes of action has been reiterated in the landmark case of Campbell v MGN as well.[5] At one extreme are the proponents of ‘direct horizontal effect’ of the Act who assert that the HRA is directly applicable to private disputes and the courts are obliged to take into account this legal position. The most ardent supporter in this regard has been the late academic and Queen’s Counsel, Sir William Wade.[6] Murray Hunt is also a supporter of this position, writing in 1998 that pre-enactment documents (White Paper, Parliamentary debates, etc.) and Convention jurisprudence all ‘point irresistibly’ to the fact that the Convention is horizontally applicable when the Act comes into force but will not give rise to an independent cause of action for breach of Convention rights and that over time, nobody will be without a remedy in domestic law for breach of their Convention rights.[7] Another argument in support of this notion is that the terminology of ‘horizontality’ is itself misleading as it presumes that the HRA regulates the relationship between the citizens and the state as asserted by Sedley LJ. However, the true objective of the Act is to charge the state with a positive duty to protect human rights violations by abuse of power, whether by public or private entities.[8] Courts, however, have been less than certain on the horizontal effect or application of the Act or Convention rights on inter se disputes and judicial opinion in this regard shows a chequered history. Thus, in Gregory v Portsmouth City Council[9] decided just before the HRA came into force, the House of Lords did not take into account Convention rights or European jurisprudence while disposing of a case in which the issue was whether the tort of malicious prosecution extended to malicious domestic disciplinary proceedings, concluding unanimously that it did not. On the other hand, other cases like Reynolds[10] and Arthur[11] decided around the same time proclaim that it was ‘common ground’ that the Act would soon come to force and consideration would have to be given to Convention rights and attached jurisprudence. The passage of time has not shed too much clarity on the matter and there have been cases in which it has asserted that common law should not develop in line with Convention rights as the Act provides ample remedies under ss 7 and 8 thereof to redress human rights violations. This view was adopted by the House of Lords in Watkins v Home Office[12] and reaffirmed by Lord Brown in Van Colle.[13] Similarly, in JD v. East Berkshire Community Health NHS Trust & Ors Lord Nicholls drew a clear distinction between the approach of the court in considering negligence claims in tort and those under the Convention/HRA, stating that ‘sometimes in human rights cases...(it is) appropriate for an international or domestic court to look backwards over everything which happened. In deciding whether overall the end result was acceptable the court makes a value judgment based on more flexible notions than the common law standard of reasonableness and does so freed from the legal rigidity of a duty of care.'[14] Nonetheless, as will be seen later, the influence of the Act/Convention is certainly there in tort cases. Steele characterises the influence of the Act on tort law as a ‘cascade- no less real, but less predictable and far harder to trace with certainty’ but argues that even of the Act was repealed, the ‘values inherent in the law of tort and resembling the Convention rights that have been reinforced or energised by the Act’ would not necessarily be unravelled simply by such a repeal and the courts would also perhaps not be inclined to do so.[15] Privacy and Human Rights: The concept of privacy is essentially a concept of the United States articulated first in the famous article by Samuel Warren and Louis Brandeis entitled 'The Right to Privacy' in 1890 in which the authors asserted that it was an extension of the tort of trespass which hitherto was applicable only to tangible/physical property and was necessitated due to the march of technology and an overzealous press which allowed increased interferences into one's personal life that impacted on one's right 'to be let alone.'[16] Traditionally, there is no distinct tort of invasion or breach of privacy in the United Kingdom. As late as 2004, Lord Hoffmann stated in Wainwright & Anor v Home Office that 'The need in the United States to break down the concept of "invasion of privacy" into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle’ going on say that privacy could be protected under several common law and statutory remedies including trespass, nuisance, defamation, malicious falsehood, equitable action for breach of confidence, the Protection from Harassment Act 1997 and the Data Protection Act 1998 but the law still left 'gaps' which may or may not be filled by 'judicious development of an existing principle.'[17] In the context of the Convention, the right to privacy is provided as a qualified right (subject to national security, public safety, prevention of crime and protection of health and morals as well as the rights and freedoms of others) in Article 8 thereof which states that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’ [Art. 8(1)]. The seminal case of the Strasbourg court dealing with the right to privacy in a dispute between private entities is Von Hannover v Germany[18]relating to paparazzi photographs of a celebrity which could not be prevented from being published in the popular press, the court found in favour of the Applicant and held that there was no public interest inherent in publication of private photographs and that the state in such circumstances had a positive duty to ensure the privacy of its citizens under Article 8. An example of both the vertical as well as horizontal application of Convention rights is the decision of the ECtHR in Peck v UK[19] in which CCTV camera footage of the applicant trying to commit suicide was released by the Council to the local print and TV press which showed it extensively was regarded as violation of his Article 8 right. While this may be an admirable extension of Article 8 rights for privacy protection in the private space, English courts have expressed doubt on the absolute nature of the principle and the direct horizontal application of Article 8 rights in the private sphere. In a recent decision in Malik v Fassenfelt & Ors, Lord Toulson has stated that the primary ambit of Article 8 is a negative injunction on the State to not interfere with a person's private life or home, etc. except on limited grounds. The nature, scope and ambit of the state's positive obligations remain unclear. It is true that the Strasbourg court has held in some cases that there is a positive duty of the state to take measures for protection of a person's private life from interference by another private person or private enterprise, for example, against criminal acts - X & Y v Netherlands[20] and MC v Bulgaria[21] or against the paparazzi as in Von Hannover. ‘However, these are striking and unusual cases in which the applicants were victims of particularly objectionable conduct which seriously impaired their ability to lead a normal life. Article 8 does not ordinarily apply to regulate conduct in the private sector.[22] However, this may be regarded as obiter dicta since the Court of Appeal in Ash & Anor v McKennitt & Ors[23] has placed great reliance on Von Hannover and the principle of restricting media freedom and opting for its rationale rather than the permissiveness accorded to the press by such decisions as A v B plc.[24] Buxton LJ in McKennitt admitted that the two rulings could not be reconciled but deemed A v B to be inapplicable to the proceedings before it by stating that ‘If the court in A v B had indeed ruled definitively on the content and application of article 10 then the position would be different; but that is what the court did not do. Having made the important observation that the content of the domestic law was now to be found in the balance between articles 8 and 10, the court then addressed the balancing exercise effectively in the former English domestic terms of breach of confidence. No Convention authority of any sort was even mentioned.’ Thus, in McKennitt, the court not only placed importance on Convention rights but impliedly regarded Convention jurisprudence to be more applicable in view of the grafting of Articles 8 and 10 into English tort law on protection of private information. The High Court in Rocknroll v News Group Newspapers Ltd has regarded this approach in McKennitt as indicative of the fact that Von Hannover ‘has been identified as definitive of this aspect of the English tort of misuse of private information.’[25] Such a reading comports with other English cases as well. In Campbell for instance, English courts have explicitly held that development of common law has been in harmony with Convention rights and accordingly read Article 8 right as part of the common law ground of breach of confidence while granting relief to the appellant in a private dispute thereby recognising the horizontal application of Convention right. When considering an Article 8 right, another right, that of freedom of expression of a person seeking to use the sensitive information (usually the press but not always) provided for in Article 10 also comes into play. This freedom is recognised in s 12(3) of HRA and according to the House of Lords is a direct Parliamentary response to apprehensions of restrictions against the media[26] when enforcing Article 8 rights upon enactment of the HRA that leaves no doubt that horizontal application of Article 8 rights was contemplated or envisaged by the lawmakers. Therefore, the position that emerges is that Articles 8 and 10 rights have been ‘shoehorned’ into the tort of breach of confidence in such circumstances while considering whether there has been any breach of privacy in such circumstances[27] and as such it does not matter whether the guilty party is a public body or a private entity. When Articles 8 and 10 are in conflict, Lord Steyn has given the ‘ultimate balancing test’ in In re S (a child) where he has stated that neither article has precedence over the other and that a comparative analysis on the specific rights claimed and justifications for interference or restriction should be undertaken along with the proportionality test.[28] Ward LJ in the landmark decision of ETK v News Group Newspapers Ltd[29] has kept Article 8 as the centre of the 'first stage' test when deciding an application for interim injunction to restrain publicity of private information which is 'to ascertain whether the applicant has a reasonable expectation of privacy so as to engage Article 8; if not, the claim fails.' In case Article 8 is applicable, the court can move to the second stage and apply Lord Steyn's four parts 'ultimate balancing test.' These guidelines including the applicability of Article 8 have been quoted with approval by the High Court in recent cases such as PNM v Times Newspapers Ltd & Ors[30] and Rocknroll, which all involve disputes between private entities. In fact, in Murray v Big Pictures (UK) Ltd[31] in which the court held that the privacy of the famous author, JK Rowling’s infant son were violated by the private media companies, the claim was largely based on the violation of the child’s Article 8 Convention right indicating that the court was operating from the standpoint of s 6(3) of the HRA as discussed above. Conclusion: From the above overview, it may be reasonably concluded that while the initial stages of horizontal application of human rights in privacy law was in doubt, a majority of cases leave no doubt that it is indeed applicable. As stated by Steele and noted by the High Court in Theakston v MGN Ltd[32] this has been made possible by grafting Convention principles into tort law which removes any limitations on the status of the guilty party. Cases such as Murray presume Article 8 to be an integral part of English law in its own right and do not question the assertion of the right against private entities despite the intervening framework of the HRA, which concentrates on the acts, and omissions of public authorities. Bibliography A v B plc [2003] QB 195 Arthur J.S. Hall and Co. v Simons [2000] 2 All ER 673 Ash & Anor v McKennitt & Ors [2006] EWCA Civ 1714 Campbell v MGN [2004] 2 AC 457 Cream Holdings Ltd & Ors v Banerjee & Ors [2004] 4 All ER 617 Douglas v Hello! (No3) [2006] QB 125 Ewing K, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern law Review 79 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 Gregory v Portsmouth City Council [2001] 1 All ER 560 Hertfordshire Police v Van Colle [2009] 1 AC 225 Hunt M, ‘The Effect on the Law of Obligations’ in Basil Markesinis (ed), The Impact of the Human Rights Bill on English Law (Clarendon Press 1998) In re S (a child) [2005] 1 AC 593 JD v. East Berkshire Community Health NHS Trust & Ors [2005] 2 AC 373 Klug F, 'The Human Rights Act 1998, Pepper v Hart and All That' [1999] PL 246 Malik v Fassenfelt & Ors [2013] EWCA Civ 798 MC v Bulgaria (2003) 15 BHRC 627 Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 Peck v UK [2003] ECHR 44 PNM v Times Newspapers Ltd & Ors [2013] EWHC 3177 (QB) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) Sedley S, Freedom, Law and Justice (Hamlyn Lectures 1999) 38Wright J, Tort Law and Human Rights (Hart Publishing 2001) Steele J, Tort Law: Text, Cases, and Materials (2nd edn, OUP 2010) Theakston v MGN Ltd [2002] EWHC 137 (QB) Von Hannover v Germany [2004] ECHR 294 Wade W, ‘Horizons of Horizontality’ (2000) 116 LQR 217 Wainwright & Anor v Home Office [2004] 2 AC 406 Warren S and Brandeis L, ‘The Right to Privacy’ (1890) 4 Harvard LR 193 Watkins v Home Office [2006] 2 AC 395 X & Y v Netherlands (1985) 8 EHRR 235   1
[1] [2009] 1 AC 225 [58] [2] Jane Wright, Tort Law and Human Rights (Hart Publishing 2001) 22 [3] Keith Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern law Review 79, 89 [4] In Francesca Klug, 'The Human Rights Act 1998, Pepper v Hart and All That' [1999] PL 246 [5] [2004] 2 AC 457 [6] William Wade, ‘Horizons of Horizontality’ (2000) 116 LQR 217 [7] Murray Hunt, ‘The Effect on the Law of Obligations’ in Basil Markesinis (ed), The Impact of the Human Rights Bill on English Law (Clarendon Press 1998) 180 [8] Stephen Sedley, Freedom, Law and Justice (Hamlyn Lectures 1999) 38 [9] [2001] 1 All ER 560 [10] Reynolds v Times Newspapers Ltd [2001] 2 AC 127 [11] Arthur J.S. Hall and Co. v Simons [2000] 2 All ER 673 [12] [2006] 2 AC 395 [13] Van Colle (n 1) [138] [14] [2005] 2 AC 373 [93] [15] Jenny Steele, Tort Law: Text, Cases, and Materials (2nd edn, OUP 2010) 24-26 [16] Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard LR 193, 193-196 [17] [2004] 2 AC 406 [18] [18] [2004] ECHR 294 [19] [2003] ECHR 44 [20] (1985) 8 EHRR 235 [23] [21] (2003) 15 BHRC 627 [153] [22] [2013] EWCA Civ 798 [44] [23] [2006] EWCA Civ 1714 [24] [2003] QB 195 [25] [2013] EWHC 24 (Ch) [11] [26] Cream Holdings Ltd & Ors v Banerjee & Ors [2004] 4 All ER 617 [15] [27] Douglas v Hello! (No3) [2006] QB 125 [53] [28] [2005] 1 AC 593 [17] [29] [2011] EWCA Civ 439 [10] [30] [2013] EWHC 3177 (QB) [31] [2008] EWCA Civ 446 [32] [2002] EWHC 137 (QB) [28]
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