LECTURES - College of Social Sciences and International Studies ...

Public Power and Private Power
striking series of social, economic and environmental rights. 5 In
Canada, where the now forgotten Bill of Rights 1960 had sunk
like a lead balloon, the 1982 Charter of Rights and Freedoms in
the hands of a creative Supreme Court has transformed the
country's legal and political culture. The High Court of Australia
has discovered an unexpected batch of civil rights in a constitution
which for almost a century had been thought to contain
none. 6 New Zealand has established that the omission from its
1985 Bill of Rights of any provision for special remedies will not
prevent the courts giving damages for violations. 7 There is no
reason to think that the courts of the United Kingdom will be
insensitive to this wind of change. But it may be a mistake to
suppose that the success or failure of a rights instrument is no
more than a matter of judicial inclination. It is going to be fully
as much a consequence of how lawyers shape up to the task. If
Convention rights are used simply as fallbacks where other
arguments have failed, the Human Rights Act may well become
devalued. Convention rights will acquire the throwaway status
of Wednesbury unreasonableness—a contention so regularly
used as a makeweight that in the handful of cases where it really
might be relevant it provokes unwarranted scepticism. If on the
other hand lawyers (especially those now coming through the
law schools) learn to discern the viable human rights issues in
fact situations and to argue these with discrimination and skill
as organic elements of their case, the courts themselves will be
helped to understand the relevance and purpose of the Human
Rights Act and a human rights culture may begin to take root.
Let me assume the best—that the legal system will adapt to
the new approach, and that judges, academics and practitioners
will learn steadily from each other as time goes by. I assume it
readily because I think it is the likeliest scenario. If so, I believe
that there are two major tranches of jurisprudence which are
going to demand continuing attention. The first, which I hope to
look at in my next lecture, is the question of substantive as
opposed to formal equality before the law. The second, which
I want initially to focus on in this lecture, is what is commonly
but misleadingly called the horizontal effect of human rights.
5 See, for a seminal instance, People's Union for Democratic Rights v. Union of India,
Bhagwati and Islam J.J., May 11, 1982; published as Observe Labour Laws by the
Baliga Foundation. Cf the 1996 Constitution of South Africa, Arts 22-29, which
spells out a series of such rights.
6 See Australian Capital TV Pty Ltd v. Commonwealth (1992) 177 C.L.R. 106;
Nationwide News Pty Ltd v. Wills (1992) 177 C.L.R. 1. I have commented on
these remarkable decisions in "The Sound of Silence: constitutional law without
a constitution" (1994) 110 L.Q.R. 270 at 276.
7 Simpson v. A-G (Baigent's Case) [1994] 3 N.Z.L.R. 667.
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