Horizontal Effect and the Constitutional Constraint

33 Pages Posted: 19 Oct 2011

Date Written: November 2011

Abstract

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 develop the 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 by virtue 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.

Keywords: Human Rights Act 1998, horizontal effect, public authorities, European Convention, Strasbourg jurisprudence, positive obligations, common law, causes of action, law‐making, incrementalism, rule of law, separation of powers, democracy, judicial policy, judicial precedent

Suggested Citation

Phillipson, Gavin and Williams, Alexander, Horizontal Effect and the Constitutional Constraint (November 2011). Modern Law Review, Vol. 74, No. 6, November 2011, Available at SSRN: https://ssrn.com/abstract=1946129 or http://dx.doi.org/10.1111/j.1468-2230.2011.00876.x

Gavin Phillipson (Contact Author)

Durham Law School ( email )

University of Durham
50 North Bailey
Durham, DH1 3ET
United Kingdom
(0191) 3342805 (Phone)

Alexander Williams

Durham University - Law School ( email )

50 North Bailey
Palatine Centre
Durham, County Durham DH1 3ET
United Kingdom

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