The Horizontal Effect of Human Rights after Brexit: A Matter of Renewed Constitutional Significance

Abstract

This article examines the implications of Brexit for the application of human rights to disputes between private actors (‘horizontal effect’). The presence of EU law within the domestic legal system had created a remedially more favourable environment for addressing human rights violations by private actors than the Human Rights Act, as it allowed the direct reliance on human rights against private actors in situations coming within the scope of EU law. Section 5(4) and Schedule 1(3) of the EU (Withdrawal) Act 2018 removed the added benefits of relying on EU law in horizontal disputes, thus raising the question of how domestic case law might now develop. This article puts forward a two-fold argument in this regard: first, in light of the Withdrawal Act’s overarching purpose of continuity with the status quo until further repeal, it propounds a narrow reading of the aforementioned provisions. Secondly, it shows that there is an intricate, but so far under-appreciated, relationship between the unavailability of EU remedies and the development of indirect horizontal effect under sections 3 and 6 HRA, which could trigger a broader revival of horizontality in domestic human rights law.