Questioning the ‘true effect’ of the Human Rights Act

Abstract

One of the most important issues arising from the Human Rights Act 1998 is the degree of its applicability, if any, to relations between private individuals. While the wording of the Act itself provides no clear guidance on the matter, and a wide-ranging spectrum of potential outcomes has been identified, there is an emerging academic consensus that the Act will have some horizontal effect – but limited to enabling development of the existing common law, and not extending to provision of new actions and remedies. This paper seeks to challenge that consensus. Fidelity to the jurisprudence of the European Court of Human Rights requires that the effect of the Act go beyond mere incremental development. There is clear authority that the legal systems of signatory states must provide remedies for infringement of individual rights by other individuals. Nothing in the Human Rights Act 1998 obstructs this interpretation. Further, the paper seeks to identify certain fatal errors in the arguments of the ‘developmental consensus’ .