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Horizontal Effect and the Constitutional Constraint
Author(s) -
Phillipson Gavin,
Williams Alexander
Publication year - 2011
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2011.00876.x
Subject(s) - incrementalism , constraint (computer aided design) , law , doctrine , context (archaeology) , law and economics , political science , duty , preemption , economics , computer science , mathematics , politics , history , geometry , archaeology , operating system
This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the H uman R ights A ct imposes on the courts to give horizontal effect to E uropean C onvention rights through the common law. The model requires courts to develop the common law compatibly with the C onvention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA ; and that by virtue of section 2 of the HRA , Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply C onvention rights and cannot allow them to be overridden by non‐ C onvention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.