6 - Clarity postponed: horizontal effect after Campbell  pp. 143-173

Clarity postponed: horizontal effect after <i>Campbell</i>

By Gavin Phillipson

Image View Previous Chapter Next Chapter



Introduction

The issue of whether the Human Rights Act imports Convention rights – or Convention principles – into private law is of great importance to the judicial attitude towards the HRA project. This chapter seeks not simply to analyse the doctrinal treatment of the issue by the courts, but to suggest, tentatively, some considerations underlying the judicial approach to it which might explain the result that, six years after the HRA came into force, there is still considerable ambiguity surrounding this point. I start with the following contention: that to allow what was hitherto an international treaty to penetrate deep into the common law was something about which the judiciary was always likely to feel ambivalent. It is one thing when Parliament simply replaces an area of common law with a statutory code – though it may be noted that even the enactment of a new statutory code in a particular area has not prevented the judiciary from developing the common law in a way that arguably circumvents or subverts it. But for Parliament to enact a statute that had the capacity to colonise whole swathes of the common law with general Convention principles was quite another matter: it threatened the whole traditional common law style of reasoning and the judiciary's autonomy in developing it.