1. ‘HRA 1998’.

2. ‘ECHR’. This is undoubtedly the case where private law is statutory- all legislation is to be interpreted in line with the Convention: HRA 1998, s 3. See eg, AsMownv Telegruph Group[2001 J 3 WLR 1368 (Copyright, Designs and Patents Act 1988).

3. Some of these are briefly discussed in the Conclusion, below.

4. [2001] QB 967.

5. [2001] QB 967 at 1009. (The haste owing to it being an appeal against an injunction to restrain publication of an imminent issue of the defendants’ magazine.)

6. Notable articles include: M Hunt ‘The “horizontal effect” of the HRA’ [1998] PL 423; I Leigh ‘Horizontal rights, the HRA and privacy: Lessons from the Commonwealth?’ (1 999) 48 ICLQ 57; G Phillipson ‘The HRA and the common law’ ( 1999) 62 MLR 824; N Barnforth ‘The application of the HRA to public authorities and private bodies’ (1999) 58 CLJ 159 and ‘The true effect of the HRA’ (2001) 117 LQR 35; Buxton LJ ‘The HRA and private law’ (2000) 1 16 LQR 48; Sir H W R Wade ‘Horizons of horizontality’ (2000) 116 LQR 217; Lord Lester and D Pannick ‘The impact of the HRA on private law: The knight's move’ (2000) 1 16 LQR 380; T Raphael ‘The problem of horizontal effect’ [2000] EHRLR 493; I Hare, ‘Private parties, privacy and the HRA’ [2001] EHlUR 526.

7. See F Mug ‘The HRA, Pepperv Hartand All That’ [1999] PL 246; and J Cooper and Marshall-Williams, A Legislating for Human Rights: The Parliamentary Debates on the Human Rights Bill (Oxford: Hart, 2000 Google Scholar). Also n 12 below.

8. A point first forcefully made by J H Baker ‘Statutory interpretation and parliamentary intention’ [1993] CLJ 353.

9. [1993] AC 593. Criticised by Baker, n 8 above. Applied, with some reservations, by the House of Lords in Rv Environment Secretary, ex p Spath Holme[2001] 2 AC 349.

10. Lord Steyn ‘Pepper v Hurt:A re-examination’ (2001) 21 OJLS 59.

11. Lord Lester of Herne Hill QC, 583 HL Official Report (5th series) col 468, 18 November 1997. His Lordship has recently completed his rehabilitation, stating: ‘As the guilty party who won the case of Pepper v Hurt,in many ways I have always regretted that victory because I find it unsatisfactory that one has to use debates of this kind in order to make clear what ought to be clear on the face of the Bill.’: 623 HL Official Report (5th series) col415,8 March 2001.

12. Hunt, Phillipson, both n 6 above, and R Singh ‘Privacy and the media: The impact of the Human Rights Bill’ in Markesinis, B (ed) Protecting Privacy (Oxford: Clarendon, 1999 Google Scholar). All of these rely heavily upon statements by Lord h i n e of Lairg LC to support their preferred variant of ‘indirect horizontal effect’. Eg Phillipson, n 6 above, at 826,827,828,829,835,840. The reasoning is less persuasive as a result.

13. See ‘The UKs Bill of Rights’ in Cambridge University Cenk of Public Law Constitutional Reform in the UK: Practice and Principles(Oxford: Hart, 1998); n 6 above; and Wade and Forsyth Administrative Law(Oxford: Oxford University Press. 8th edn, 2000) p 983.

14. (2000) 116 LQR 217.

15. (2000) 1 16 LQR 217 at 218. This question is considered in the next section

16. (2001) 117 LQR 34 at 38.

17. Hart, H L A The Concept of Law Oxford: Clarendon, 2nd edn, 1994) pp 33-35 Google Scholar.

18. Mr Bamforth discusses the ‘remote’ possibility that a damages remedy against the courts might come to be implied into the Act, as happened in New Zealand (Baigent's Case[1994] 3 NZLR 667). This is problematic in England, however, given the expressprovision for damages against the courts for breach of art 5 ECHR in s 9(3) of HRA 1998: expressio unius est exclusio alterius.

19. And to assert that English laws were in factalways ‘perfect’. See Lectures on Jurisprudence(London: John Murray, 5th edn, 1885) p 99.

20. See Hart, n 17 above, esp ch 2;also chs I , 3-6,8 and 10.

21. ‘Once we free ourselves from the … conception oflaw as essentially an order backed by threats, there seems no good reason for limiting the normative idea of obligation to rules supported by organised sanctions.’: Hart, n 17 above, p 21 8.

22. Hart, n 17 above, pp 227-232.

23. [1994] 1 AC 377. For EC law see Rv Secretary of State for Transport, exp Factortame (No 2)[1991] AC 603.

24. See Lord Templeman's declaration that to uphold the government's argument to the contrary would be to ‘establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War’: [1994] 1 AC 377 at 395.

25. Lord Woolf, in the leading speech said that this was unnecessary since ‘the Crown's relationship with the courts does not depend on coercion … It will then be for Parliament to determine the consequences of that finding [of breach] … [Tlhe object of the exercise is not somuch to punish the individual as to vindicate the rule of law’: [1994] 1 AC 377 at 424-426.

26. Ibid.

27. ‘[S 9( l)] does not affect any rule of law which prevents a court from being the subject Of judicial review.’

28. [1981] AC 374.

29. (2001) 117 LQR 34 at 39.

30. Buxton LJ, n 6 above, at 57.

31. Racal,of course, implies nothing about the scope of appeal (the statutory exclusion of appeal having given rise to the review issue in that case in the first place): [198 11 AC 374.

32. Jolowicz, J A On Civil Procedure (Cambridge: Cambridge University Press, 2000 CrossRefGoogle Scholar) ch 15.

33. ‘It is impossible to continue to insist that there are totally different sorts of institution, each seeking to serve different purposes in society.’ Jolowicz, n 33 above, p 3 19.

34. The same is essentially true of appeals to the Lords.

35. Cf CPR 52.1 l(2): ‘Unless it orders otherwise, the appeal court will not receive (a) oral evidence; or (b) evidence which was not before the lower court.’ A restrictive approach is taken towards this power: Ladd v Marshall[1954] 1 WLR 1489.

36. CPR 52.1 l(1).

37. To adopt the classification of heads of judicial review used by Lord Diplock in the GCHQ Case[1985] AC 374.

38. [1998] TLR 85;(1998) 142 Sol Jo LB 92 (judgment of 13 February 1998). Approved as the ‘correct approach’ by the Privy Council in Cobham v Frett [2001] 1 WLR 1775.

39. One of the cases reported as Locabail v Bayfield Properties [2000] QB 45 1.

40. Anactivity about which the eminent and prolific bench of Lord Bingham of Comhill CJ, Lord Woolf MR and Sir Richard Scott V-C might be said to possess some judicial knowledge.

41. In Timmins v Gorley the court stressed that ‘we should not be thought to hold any view at all on the likely or proper outcome of any retrial’. [2000] QB 45 1 at 497.

42. Re Racal[1981] AC 374.

43. Again, this is now made explicit in the Civil Procedure Rules, which state that: ‘The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court’ (CPR 52.1 l(3)).

44. Per Peter Gibson LJ, giving the judgment of the court, transcript para 162.

45. CPR 54.19(3) (court's powers in respect of Quashing Orders).

46. In Greenfield v Irwin[2001] 1 WLR 1279 at 1288, Buxton LJ said that it was ‘not wholly clear, to put it at its lowest’ how any (assumed) failure by the courts to protect Convention rights could be asserted in domestic private law proceedings. His Lordship then seems, however, to have considered that such a failure could be raised on appeal, basing his rejection of the ECHR point in casuon the fact that the HRA 1998 had not been in force when the decision appealed from had been made: at 1289.

47. See n 6 above.

48. ‘Third party effect of basic rights’. The term derives from German constitutional law. See, for its development, B Markesinis and S Enchelmaier ‘The applicability of human rights as between individuals under German constitutional law’ in Markesinis, B (ed) Protecting Privacy (Oxford: Clarendon, 1999 Google Scholar). Herein Drittwirkungshould be taken in the sense of direct horizontal effect, or (in the jargon) ‘unmittelbure Dritfwirkung’: see Drzemczewski, A European Rights Convention in Domestic Law (Oxford: Clarendon, 1997) p 200 Google Scholar.

49. (1981) 4 EHRR 38.

50. British Rail was a nationalised company at the time.

51. (1981) 4 EHRR 38 at 52, para 49.

52. See Buxton, n 6 above, at 52.

53. (198 1) 4 EHRR 38.

54. (1988) 13 EHRR 204.

55. (1998)27EHRR611. SeealsoZv UK(judgmentof IOMay2001),paras72and73.

56. See, eg Oman vUK [I9991 1 FLR 193 at para 107: ‘The [respondent] Government did not dispute that Article 2of the Convention may imply a positive obligation on the authorities of a Contracting State to take preventive measures to protect the life of an individual from the danger posed by another individual.’

57. Clapham, A Human Rights in the Private Sphere (Oxford: Clarendon, 1993) pp222-231 Google Scholar.

58. Clapham, n 58 above, p 345. The quotation is fromX & Yv The Netherlands(1985) 8 EHRR 235, para 23.

59. Dr Clapham indeed opines that the relevant issues ‘arise under nearly all the other Articles but there has been little opportunity for the Commission and Court to examine them’: Clapham, n 58 above, p 240.

60. Consider sperm bank ‘customers’ wishing to take into account the race of the donor and, thus, of their child. Clapham, n 58 above, p 135; and see ch 5passim.

61. See, generally, R Singh, M Hunt and M Demetriou ‘Is there a role for the “Margin of Appreciation” in national law after the Human Rights Act?’ [1999] EHlUR 15. For doubt as to the practicality of disentangling ‘margin of appreciation’ from the other reasons underlying the ‘brief and sometimes cryptic’ Strasbourg judgments, see Phillipson, n 6 above, at 845-846.

62. Clapham, n 58 above, p 353. See his closing peroration: ‘Only as the international community becomes more concerned about the victimsof oppression will headway be made towards a just and peaceful community of mankind’: p 356 (emphasis added).

63. Made explicit in HRA 1998: ‘In this section “public authority” includes- (a) a court ortribunal …‘( s6(3)).

64. Note that courts must ‘take into account’ the jurisprudence of (inter alia) the European Court and Commission of Human Rights when ‘determining a question which has arisen in connection with a Convention right’: HRA 1998, s 2( I).

65. Also, the First Protocol, arts 1-3, and Sixth Protocol, arts 1 and 2 ECHR: HRA 1998, s 1 and Sch 1.

66. See Buxton, n 6 above, at 54.

67. 583 HL Official Report (5th series) col475, 18 November 1997. (Petitioprincipii?)

68. In Douglas and Zeta-Jones v Hello! Magazine[2001] QB 967 at 993-994, Brooke LJ raised the possibility that the omission of art 1 ECHR might prove fatal in liminefor horizontal effect, before stating: ‘In this judgment, however, I have the luxury of identifying difficult issues: I am not obliged to solve them.’

69. Or a purpose clauseflong title to similar effect, as had been proposed in some of the amendments to the Bill tabled in the House of Lords.

70. N Bamforth [1999] CLJ 159 at 166- 169, citing P van Dijk and G J H van Hoof Theory and Practice ofthe ECHR(Deventer: Kluwer, 2nd edn, 1990) pp 17- 18, and the approach to art 2 ECHR in Omanv UK[1999] 1 FLR 193.

71. Apart from art 6, right to a fair trial, and art 7, no punishment without law, ECHR where, logically, only the state can be an infringer.

72. See the summary of arguments in favour of Drittwirkungin Clapham, n 58 above, pp 352-356. Of course, individuals themselves cannot be taken before the Strasbourg Court. But the logical outcome of member states being bound to grant remedies is that individuals who infringe rights can be sued in domestic courts - second-order horizontal effect.

73. See Buxton, n 6 above, at 57.

74. Ie when Drittwirkungis appropriate.

75. See per Diplock LJ in LRfung v Cooper[1965] 1 QB 232 at 242: ‘A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’

76. [1975] 2 Lloyd's Rep 509.

77. At any rate, eponymous until Lord Woolf s linguistic purge renamed them ‘interim freezing injunctions’.

78. Another spectacular example is the European Court of Justice's invention of a remedy in damages against a member state in breach of its EC law obligations: Joined Cases C-6/90 and 9-90 Fruncovich& Bonifaci v Ifaly[1991] ECR 1-5357.

79. See s 8(1): ‘In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.’

80. ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.. .’

81. 583 HL Official Report (5th series) ∼014751, 8 November 1997.

82. 584 HL Official Report (5th series) col 1266, 19 January 1998.

83. And be ‘declared incompatible’?

84. Jack Straw MP, 317 HC Official Report (6th series) col 1367.21 October 1998.

85. See Hunt, n 6 above. Cited with approval by the Court of Appeal in Douglasv Hello! Ltd[2001] QB 967.

86. (1996) 3SA 850.

87. Kriegler J rejected the applicability of the South Afncan Interim Constitution in disputes between private bodies in all circumstances(‘blanket horizontal effect’). This, he held, would represent too great a curtailment of individual freedom of action. Without explicit statement to that effect, the Constitution should not impinge upon how private individuals conduct themselves. Contrast HRA 1998, where explicit statements as to Drittwirkungin Strasbourg jurisprudence would serve this function.

88. Witness the difficulties of the Court of Appeal in Kaye v Roberlson[1991] FSR 62, in trying to protect the claimant's privacy. Cf Douglasv Hello! Ltd[2001] QB 967.

89. See Lester and Pannick, n 6 above. Likewise, Phillipson, n 6 above, especially at 833-44.

90. ‘The judge moves the unwritten law in the manner of the Knight, that is, forward and diagonally but not directly sideways like the Queen or the castle’: Lesterand Pannick, n 6 above.

91. ‘It is especially important to weave the Convention rights into the common law and of equity sothat they strengthen rather than undermine those principles, including the principle of legal certainty’: Lester and Pannick, n 6 above.

92. ‘[Judges are not authorised] to be “knight-errants” [sic] roaming at will, using the Act as a magic lance to create new private law torts’, Lester and Pannick, n 6 above, at 384.Following Cardozo, B The Nature ofthe Judicial Process (New Haven: Yale University Press, 1921 ) p 141 Google Scholar

93. Lester and Pannick, n 6 above, at 383. See, in particular, HRA 1998, s 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

94. See quotations in footnotes above. This second point is rather undermined by the authors’ express concurrence with Mr Hunt's ‘all laws’ argument which, as argued above, itself compromises legal certaintypro tanto, through the direct application of the ECHR in the empty shell of an existing cause of action.

95. See Rantzen v MGN(1986) Ltd[1994] QB 670 at 690-692.

96. HRA 1998, s 3( I): ‘Sofar as it ispossible to do so,primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’ [emphasis added]. See Bamforth, n 16 above, at 35-37.

97. Denning LJ famously divided judges into ‘bold spirits’ who would allow new causes of action, and the ‘timorous souls’ who would not: Candler vCrane, Christmas & Co [1951] 2 KB 164at 178.

98. Cf in a different context Bowen LJ's aphorism that ‘seeking an equity is like looking in a dark room for a black hat that does not exist’. Sir A Underhill Change and Decay (London: Butterworths, 1938) p 86. The line between ‘development’ in line with the ECHR and outright ‘legislation’ might be thought equally elusive.

99. Admittedly, the point is made in rebuttal of Sir Richard Buxton's contention that there be no horizontal effect for the Convention at all: n 16 above, at 35-36.

100. HRA 1998, s 4.

101. This textual argument alone can conclusively rebut the logic of the argument for full horizontal effect. It is criticised above.

102. This is perhaps doubtful, given the omission of art 13 ECHR from the incorporation.

103. HRA 1998, s 6(2).

104. See eg, per Keene LJ [2001] QB 967 at 1012.

105. [2001] QB 967 at 997 and 1002 (Sedley LJ) and 101 1-1012 (Keene LJ).

106. [2001] QB 967 at 990-994. For the art 1 argument, see above.

107. [2001] Fm430. See also Paynev Payne[2001] Fam473 at 486: ‘the view expressed by Buxton LT [in ReA[2000] 2 FLR 2251, to the effect that the Convention perhaps has no place in this area of litigation [ie child custody dispute between parents], seems no longer sustainable in the light of.. . Douglasv Hello!’per Thorpe LJ. Likewise, Butler-Sloss P (at 499).

108. A v B [2002] EWCA Civ 337.

109. [2002] EWCA Civ 337 at [4].

110. The court did say, echoing Douglas,that ‘in the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection’. Thus, the question of ‘direct or indirect’ horizontal effect, and a privacy tort, did not arise for decision.

111. For yet another example, see O’Shea v MGN Lrd[2001] EMLR 943.

112. R Brinktrine ‘The horizontal effect of human rights in German constitutional law’ [2001] EHRLR 421 at 425.

113. Save when Parliament asserts its sovereignty, and rejects the courts’ ‘advice’ on incompatibility. Here too HRA 1998 might be said to infringe the ECHR (especially art13), albeit for reasons of fundamental constitutional importance.

114. See Rights Brought Home: the Human Rights Bill(October 1997) Cm 3782.