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INTRODUCTION: CONTROVERSY OVER "HORIZONTAL EFFECT" 1The Human Rights Act 1998 gives circumscribed domestic effect to key rights of the European Convention on Human Rights and Fundamental Freedoms.While many aspects of this incorporation are not contentious, the degree to which the Act affects legal relations between private individuals 2 is controversial.The Act gives effect to the "Convention rights" 3 in two ways.First, "so far as possible", all legislation must be interpreted "in a way which is compatible with the Convention rights".4 If it cannot be so interpreted, the court may make a declaration of incompatibility.5 No reference is made to the status of the defendant, and it is widely agreed that this interpretative obligation applies irrespective of whether or not any party to the proceedings is a "public authority".Second, section 6(1) makes it unlawful for a "public authority" to act incompatibly with a Convention right.The victim of such an act may bring proceedings against the public authority or rely on the Convention rights concerned in any legal proceedings.6 If the court finds a violation, it "may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate".7 Thus, where the defendant is a public authority, the Act itself can be relied on as a cause of action.Section 6(3) provides that a "public authority" includes "a court or tribunal".Thus, section 6(1) read with section 6(3) asserts that "[i]t is unlawful for a . . .[court] to act in a way which is incompatible with a Convention right".Commentators, however, disagree about the extent to which this affects legal relations between individuals.At one extreme, Sir William Wade holds that it follows that claimants need only plead that their Convention rights have been violated and, if the court agrees, it is required to enforce these rights.8 The Act itself creates new legal relations between individuals, where these do not already exist, though the courts have some discretion over their development.At the other extreme, Sir Richard Buxton declares that the 1 Legal effect can be given to the rights purely vertically, whereby they have effect only against the state, or horizontally, whereby they have effect between individuals.2 Reference to "individuals" will refer to private individuals, unless otherwise stated.3 These are listed in Schedule 1 of the Act; viz., Articles 2-12 and 14 of the Convention, Articles 1-3 of the First Protocol, and Articles 1 and 2 of the Sixth Protocol.The phrase "the Convention rights" refers to these provisions as distinct from all the rights in the Convention, which we refer to as "the rights of the Convention".4 s.3(1).5 s.4(2).Although a declaration of incompatibility does not affect the continuing force of legislation, it engages a remedial procedure (s.10).6 s.7(1).7 s.8(1).8 See Wade (2000) 116 L.Q.R. 224.See also Wade, "The United Kingdom's Bill of Rights", in Constitutional Reform in the United Kingdom: Practice and Principles (eds.Beatson, Forsyth and Hare, 1998), pp.59-68.
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