The effect of the Bill of Rights
on private parties
286. In his lectures and speeches about the possible
Bill of Rights, the Justice Secretary has referred to the "horizontality"
of the South African Bill of Rights, that is, the fact that in
certain circumstances it applies in disputes between private parties,
such as in a defamation action against a newspaper. He cited Justice
Kate O'Regan of the South African Constitutional Court, who
explained that in South Africa when a court develops the common
law, such as libel law, it must consider the obligations imposed
by the Bill of Rights. During the Committee's recent visit to
South Africa, reference was frequently made to the "horizontality"
of the South African Bill of Rights and a number of those with
whom the Committee met expressed the view that any modern democratic
Bill of Rights should have some horizontal effect because of the
growing significance of private power. The Committee also heard
that the courts in South Africa had been very cautious in the
way in which they give effect to this aspect of the Bill of Rights,
finding not that the Bill of Rights creates new free-standing
causes of action against private parties, but that it imposes
a duty on courts to develop existing causes of action where it
is possible to do so.
287. Another way in which the HRA, through its
application to public functions, imposes responsibilities on private
parties is in the way that individuals employed to provide a public
function are not able, without express statutory provision - which
must itself be justified - to assert their right to manifest a
personal belief (religious or otherwise) to deny access to public
services to another person or persons, or to discriminate in the
provision of such services. An example of the way this has been
used is the restriction on the freedom of individuals or religious
organisations working in adoption services to discriminate against
gay and lesbian prospective parents. The balance of rights underpinning
this is discussed more fully in our report on the Equality Act
Sexual Orientation Regulations.[247]
We recommend that any UK
Bill of Rights should make clear the responsibility, when performing
a public function, to subordinate the manifestation of a personal
belief which would discriminate against, or undermine the rights
and freedoms of, others to the interests of those seeking to access
public services.
288. We agree with the Government that any Bill
of Rights should not have "direct horizontal effect",
that is, it should not give freestanding causes of action to individuals
against other private parties for breach of their fundamental
rights. We agree with Justice Kate O'Regan's analysis that this
would be a recipe for uncertainty and confusion, cutting across
the well-established categories of private law liability, and
giving rise in practice to difficult questions of practice and
procedure.
289. However, we think it is important that any
new Bill of Rights acknowledges the reality, already acknowledged
by our courts under the HRA, that in certain circumstances certain
rights impose a positive obligation on the State to ensure that
some protection for the right is available against another private
party, and that this may require the courts to develop the existing
law governing relations between private parties where it is possible
to do so. For example, in the well known case of Michael Douglas's
claim against Hello magazine for publishing his wedding
photographs, the courts have developed the common law of breach
of confidence in order to provide a remedy for a breach of the
right to respect for privacy in Article 8, where that right imposed
a positive obligation on the state to protect the rights against
interferences by other private parties.[248]
Decisions about the right to respect for family life in Article
8 ECHR are frequently made by family law courts in cases between
parents concerning custody and access. As Sir Stephen Sedley recently
put it, writing in the London Review of Books:
One of the subtler but more profound shifts in the
eight years of the HRA's operation has been the progressive realignment
of a number of human rights from restrictions on the power of
the state to positive standards of human conduct: in other words,
from the vertical to the horizontal.[249]
290. The South African Bill of Rights includes
a provision which expressly makes the Bill of Rights binding on
a private party "if and to the extent that it is applicable,
taking into account the nature of the right and the nature of
any duty imposed by the right."[250]
On the face of it this looks like a radical departure from traditional
conceptions of Bills of Rights, by imposing duties on private
parties to act compatibly with the rights in the Bill of Rights
("direct horizontal effect").
291. During our visit to South Africa we inquired
whether this provision had resulted in frequent litigation against
private parties for breach of fundamental rights. Justice Kate
O'Regan told us that the provision in the Bill of Rights had been
applied sensibly by courts, by the incremental development of
existing causes of action, rather than as giving rise to any new
free-standing cause of action.[251]
In practice, it seems, the position under the South African Bill
of Rights is therefore substantially the same as that which has
been arrived at by UK courts under the HRA. It enables rights
in the Bill of Rights to be relied on against private parties
only where there is a positive obligation on the state to ensure
that the right in question is protected against breaches by private
parties and there is some pre-existing cause of action into which
the claim can be fitted, if necessary by the courts developing
the law to make the action possible ("indirect horizontal
effect"). When we asked Baroness Hale how revolutionary it
would be to follow South Africa's example and provide for some
rights to have a degree of application to private parties according
to the nature of the rights, she said:
It would not be tremendously revolutionary because
we have already, in a sense, applied concepts from the Human Rights
Convention in situations between private parties, the Naomi Campbell
case being one of them, in which we obviously balanced her right
to respect for her private life against the newspaper's freedom
of expression. We did that explicitly by reference to the two
Convention rights involved. Our reason for doing that was that
we, as courts, are public authorities and we, therefore, have
to act compliantly with the Convention rights. We cannot make
orders that are incompatible with the Convention rights of either
party so in that way we introduce obligations on private individuals
and companies to respect the rights of others. It is not that
revolutionary.[252]
292. In the light of the South African experience,
we recommend
that any UK Bill of Rights should not include express provision
along the lines of the equivalent South African provision giving
full horizontal effect to the rights and freedoms in certain circumstances.
As Baroness Hale explained, the position of the indirect horizontal
effect of the HRA has been arrived at as a result of the courts
themselves being public authorities and therefore obliged to act
compatibly with Convention rights, including in their application
of the common law governing private disputes. The same effect
can be achieved by similar means in any UK Bill of Rights.
293. In the outline Bill of Rights and Freedoms
annexed to this Report, we
therefore suggest two provisions which should ensure the indirect
horizontal effect of the rights and freedoms in the Bill.
They are both modelled on provisions already in the HRA but go
slightly further, partly to spell out more clearly what our courts
are already doing as a result of being public authorities under
the Human Rights Act, and partly in the light of the lessons learned
from South Africa.
294. The first requires any
court or tribunal interpreting any legislation or applying the
common law, so far as it is possible to do so, to read and give
effect to it in a way which is compatible with the rights and
freedoms in the Bill and which promotes the purpose of the Bill.
This is modelled on the interpretive obligation in s. 3 of the
HRA but it goes further by expressly making that obligation apply
to the common law as well as statute and by requiring a reading
of the relevant law which not only achieves compatibility with
the rights and freedoms in the Bill but which promotes the purpose
of the Bill as set out in the Preamble.
295. The second includes the
courts amongst the bodies under a duty to act compatibly with
the rights and freedoms contained in the statement and to take
active steps to promote and fulfil those rights and freedoms.
This is modelled on section 6(3)(a) of the HRA, which makes courts
"public authorities" bound to act compatibly with Convention
rights and has been the crucial provision requiring courts, in
cases such as the Hello magazine case, to develop the common
law to provide a remedy for violations of Convention rights in
disputes between private parties. The provision in the outline
Bill, however, goes slightly further by making clear that public
authorities are under a positive obligation to take active steps
to promote and fulfil the rights and freedoms, which in the courts'
case may require them to take the positive step of developing
the common law in order to give a remedy for breach of a right
or freedom.
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