The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?

Abstract

The extent to which the Human Rights Act (HRA) will have any 'horizontal effect', that is, impact on the legal relations between private juristic persons, has already been recognised as perhaps its most problematic aspect.' It is also of course an issue of potentially great importance. If the more maximalist interpretations of the Act's horizontal effect so far put forward are accepted by the UK judiciary, the effect on private common law2 could be drastic: as La Forest J put it in relation to the same issue under the Canadian Charter in the seminal case of Dolphin Delivery,3 whole areas of settled private law would have to be re-opened.4 In the literature this debate has so far generated, a consensus seems to have emerged that the inclusion of the courts within the definition of public authorities which are bound not to act incompatibly with Convention rights5 is crucial in this regard. It is the contention of this article that the meaning of this admittedly key provision has so far been subject to insufficiently detailed analysis, nor considered in the context of the Act as a whole. This is partly because, as will be suggested, its meaning has