public law,

'Keep the Powder Dry': The Court of Appeal in Fearn v Tate Gallery


By Daniel Henderson Sep 22, 2020

It is safe to say that the claimants in Fearn v Tate Gallery1, owners of multi-million pound, highly exclusive London flats, are not among the neediest of those who have applied to human rights law for help. However, the decision of Mann J in the High Court,2 while focusing primarily on the tort of nuisance, did raise an issue under the Human Rights Act 1998 (HRA) of considerable importance – horizontal effect3, and the development of the common law in accordance with human rights under the European Convention on Human Rights (ECHR).

This piece will focus on this important issue, as it was dealt with on appeal by the Court of Appeal. As the Court dealt with the issue with relative brevity, focusing much of its analysis on the question of tort law outlined below, this piece will use the decision as a springboard for analysing more broadly the process by which horizontal effect is created under the HRA. In doing so, it will also serve as a response to a prior case note published on this forum, written by Thomas Yeon on the High Court decision in Fearn.4 Contrary to Yeon, who supports the High Court’s approach to the issue, this piece will argue that the approach of Mann J left a great deal to be desired, and that the decision of the Court of Appeal is to be commended, as a welcome reassertion of a preferable approach to horizontal effect under the HRA. Having first set out the distinction in approach between the two courts, it will argue that the approach of the Court of Appeal is preferable for two reasons. The first is that it is far more consistent with past authorities, including a number of well-known Supreme Court decisions on horizontal effect. The second is that it is also far more consistent with a more normative, but no less critical, element of HRA jurisprudence, best expressed as ‘keeping the powder dry’.

Court of Appeal Decision

In order to understand the importance of the Court of Appeal’s decision on the HRA point, it is necessary briefly to re-examine the approach taken by Mann J at first instance.

The facts of the case are, in fact, relatively straightforward. The claimants resided in a block of flats on the south side of the River Thames known as ‘Neo Bankside’, much of which was built from large glass panels. The result of this was that visitors to the nearby Tate Modern viewing gallery had a near-unimpeded view into the flats, and, according to the claimants, frequently used binoculars to get a better view, or even took photos which later emerged on social media. At its barest, the question facing both courts was the same – whether the tort of nuisance is capable of covering ‘overlooking’, and if it is not, whether the HRA makes any difference to that conclusion. Mann J held that the tort did cover overlooking, finding enough in the seminal decision in Hunter v Canary Wharf5 to support his conclusion. However, at paragraph 170, he then went on to hold that, “if there were any doubt about that, then in my view, that doubt has been removed by the Human Rights Act 1998 and Article 8.” In essence, Mann J’s conclusion was that English tort law most likely already covered the facts before him, but that if he was wrong about that, Article 86 certainly covered them, and a combination of the two would produce the unassailable conclusion that the claimants had a good claim.7 This process, in Mann J’s view, was the correct approach to take when developing the common law in line with human rights claims, as courts must do in order to comply with their obligations under Section 6(3)(a) HRA.8

The Court of Appeal disagreed on more or less every level, with the exception of the ultimate result. On the tort law question, the Court found that the “overwhelming weight of judicial authority” pointed against Mann J’s conclusion that English law covered ‘overlooking’.9 However, more importantly for present purposes, the Court of Appeal held that there were “a number of errors of principle” with the manner in which Mann J had approached the HRA question. They held that the correct manner in which to approach the obligations thrust upon a court by Section 6(3)(a) was a strict three-stage test: first asking if English law covers the situation, then if the ECHR covers it, then, finally, whether it is “appropriate” to extend English common law to cover the situation at hand.10 On the facts before them, the Court concluded that, while there was a mismatch between English law and the ECHR, it was not “appropriate” to extend the tort of negligence to remedy this, as to do so would “significantly distort the tort in some important respects.”11 Thus, although for dramatically different reasons, the claimants lost again.

Consistency I: Past Authorities

The problem with Mann J’s approach can be summarised very succinctly – he viewed Section 6(3)(a) as requiring him to use human rights arguments as a ‘top-up’, if the arguments under English law were not quite sufficient to get the claimants over the line and create a successful claim. Rather than viewing the English law question and the ECHR question independently, Mann J inelegantly conflated the two, holding that the arguments under Hunter had provided the claimants with a case that was almost watertight, and the remaining uncertainties could be mopped up by deploying Article 8.

Yeon argues, in his piece, that this approach is the “correct and appropriately restrained” approach to take as regards the obligations of courts under Section 6(3)(a). In this section, it will be argued that, contrary to Yeon’s argument, this approach was totally inconsistent with past authorities, and that the Court of Appeal’s approach was correct.

Yeon cites, as authority for what he calls the “correct and appropriately restrained judicial approach” of Mann J, the oft-quoted judgment of Baroness Hale in Campbell v Mirror Group Newspapers.12 In particular, Yeon cites paragraph 132, in which Baroness Hale confirmed the developing interpretation of Section 6(3)(a), namely that it does not require courts to create any new causes of action between private parties, but instead to develop the common law compatibly with ECHR principles. The correctness of this approach is indisputable, but Yeon fails to appreciate that Campbell only assists so far with the question in Fearn. It stands for the principle that courts should confine themselves to developing the common law rather than remaking it, but Baroness Hale does not express any opinion on the specific approach a court should take when so doing. Thus, Campbell is certainly authority for the proposition that Mann J could not have simply applied Article 8 as if it were itself a tort, and should instead have considered incorporating the provisions of Article 8 into English law. However, it is not authority for anything as regards when or how this incorporation should take place. Put more straightforwardly, Campbell speaks only to the broad-brush approach courts should take in interpreting Section 6(3)(a), it does not deal with the specifics of doing so. More is therefore required to assess the validity of Mann J’s approach.

Authority on the manner in which the obligation cited in Campbell should be implemented abounds. For clarity, it is important to distinguish this line of authority from that which Jonathan Morgan quite correctly terms ‘equivocal’ – “what the HRA requires of a court faced with a “horizontal” human rights claim” as a substantive matter is, indeed, somewhat unclear, but the procedure under which they should arrive at a determination of “what the HRA requires” is not.13 Perhaps the clearest example comes from the Supreme Court decision in A v BBC14, particularly paragraph 57 of Lord Reed’s judgment. There, the now President of the Supreme Court confirmed that, in the context of Section 6(3)(a), “the starting point” is always domestic law, in this case, the “domestic principle of open justice”. Only once this has been assessed, he went on to say, should the question of Convention rights emerge, and only then should “the capacity of the common law to develop”become relevant.15  On the facts of the case, Lord Reed was not required to go beyond the first of the three questions, holding the long-standing principle of open justice to be sufficient, but the decision is nonetheless important for its clarity as regards the process to be followed under Section 6(3)(a). It is clear that this approach is that taken by the Court of Appeal in Fearn, not by Mann J – the three questions must be strictly delineated, and it is impermissible to ‘top-up’ a domestic law argument with human rights considerations as a result.

A can count itself as part of a long line of authority to this effect, with Lord Reed citing a seven-Justice Supreme Court to the same effect in Kennedy v Charity Commission16 as one example. Indeed, the incorrectness of Mann J’s approach was actually confirmed yet again by the Supreme Court on the very same morning that the Court of Appeal decision in Fearn was handed down, in R (Jalloh) v Home Secretary.17 In the very first paragraph of her judgment, Baroness Hale clarified her own words in Campbell, although this time in the context of Article 5 ECHR, and the tort of false imprisonment. With characteristic clarity, Baroness Hale wrote that “this case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in Article 5 of the ECHR”.

It is crystal clear, therefore, that the approach taken by Mann J in Fearn was wrong as a matter of authority. To borrow the Court of Appeal’s phrase, “the overwhelming weight of judicial authority” falls in favour of the three-step approach they advocated, and against the ‘topping-up’ approach Mann J, perhaps unwittingly, applied. To the extent that Yeon suggested otherwise, his argument is untenable as a matter of basic precedent, and Campbell provides little more than umbrella-level guidance on a much more technical issue.

Consistency II: Keeping the Powder Dry

Yeon’s argument is not just untenable as a matter of precedent, however. It is submitted here that the reverse approach taken by the Court of Appeal is to be immeasurably preferred as the “correct and appropriately restrained judicial approach” more generally. By contrast, Mann J’s approach should, with respect, be cast away as potentially dangerous and unprincipled.

This is so for three reasons, which can essentially be summarised as a failure to respect the utility of ‘keeping the powder dry’ – failure to respect the sheer power of the HRA, and the enormous value that is therefore inherent in only deploying it when necessary, and on some occasions, leaving domestic law to do its job.

First and foremost, Mann J’s approach in Fearn stands firmly at odds with the approach taken to Section 6(3)(a) overall, aside from the question of strict precedent. The debate as to the proper interpretation of the Section has, since before it was enacted, been firmly bookended by two diametrically opposite positions. At one end is the view of Sir William Wade, who predicted that the Section could be immensely powerful.18 More specifically, his view was that the Section had the power to “transform” or outright “abolish” the common law. At the other end entirely is the view of, inter alia, Sir Richard Buxton, who argued, extrajudicially, that the proper role of human rights was to regulate the relationship between state and citizen, and that the Section should be read very narrowly to reflect this.19

English law has settled firmly for a middle-ground between the two20 – Wade’s conception of post-HRA law is simply too extreme to have been what Parliament intended (or at the very least, a change as radical as effectively creating a tort of ‘breach of human rights’ would need language far more explicit than that present in Section 6(3)(a)). Buxton’s view, on the other hand, unnecessarily emasculates human rights law by shutting off its power from a vast swathe of legal disputes in which it could justifiably be of use, and in any case, presents a narrower view of the discipline than that to which the European Court of Human Rights subscribes.21 In striking this middle ground, English law has recognised the value of ‘keeping the powder dry’, by limiting the power of the HRA, and ensuring it is not over-applied. Mann J’s approach presents an application of Section 6(3)(a) that is far too close to Wade’s view. The idea that the ECHR can be used to ‘top-up’ or ‘fill in the gaps’ for slightly defective domestic common law arguments suggests the HRA has created a kind of human rights ‘background radiation’ – a general ether of powerful legal principle that judges can call upon at will to expand the reach of the common law. This is certainly a “transformation” of the common law, as Wade warned, and thus is firmly contra the approach carefully laid down in DouglasCampbell and many others since 2000.

Secondly, it is not simply that this middle ground persists as regards Section 6(3)(a). In fact, it is an approach discernible more broadly across the Human Rights Act. There are a number of principles of HRA adjudication disclosing a palpable recognition of the power that the Act gives courts, and a concomitant reticence to deploy that power unless absolutely necessary. Perhaps the most important example of this is the judgment of Lord Reed in ANS v ML22, which concerned Section 3 HRA. Recognising the enormous power of the Section to reinterpret Parliamentary legislation, Lord Reed felt the need to reiterate the manner in which it must be deployed, namely “only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention rights”.23 This is a clear example of a desire to ‘keep the powder dry’ more generally. Section 3, much like Section 6(3)(a), is an enormously powerful tool, and it is for precisely this reason that Lord Reed, exactly like the Court of Appeal in Fearn, felt the need to ensure the boundaries of its use were correctly and stringently regulated. In both cases, the courts therefore laid down a common approach, confirming that human rights arguments should not be deployed unless ordinary domestic law cannot cover the situation at hand. Thus, clearly, Mann J’s approach in Fearn does not simply go against the prevailing approach under Section 6(3)(a), it counteracts a more general desire discernible in HRA caselaw to ‘keep its powder dry’, and ensure its vast power is regulated.

Thirdly, it is, of course, one thing to suggest that Mann J’s approach goes against the general trend of ‘keeping the powder dry’, but entirely another thing to suggest that he is wrong in doing so. Perhaps Wade was on to something – maybe human rights law should seek to implant itself into domestic common law as far as possible and have far greater horizontal effect than it does at present. However, it is submitted here that this is not as desirable as it might sound on the surface. The most common argument advanced in this direction is a purely constitutional one – the vast majority of the power afforded by the HRA goes to the judiciary, and the pseudo-legislative power in, among others, Sections 324 and 6(3)(a)25 has the potential, if misused, to upset the balance underpinning separation of powers. This argument is extremely powerful, but has been well-rehearsed, and there is no need to delve into it once again.

Instead, it is submitted that there is an additional important reason for favouring the approach English law has of ‘keeping the powder dry’ – it ensures the immense normative power of human rights law is retained. Put simply, human rights law is at its most powerful when it is not overused. This is best demonstrated by Section 4 HRA, the power to issue declarations of incompatibility. The Section could not be clearer about the fact that it has no effect on any legislation to which it is applied as a matter of law.26 Despite this, however, by mid-2015, twenty Section 4 declarations had been finalised, and nineteen of those had resulted directly in a change in the law. The reason for this is simple – Section 4 declarations represent a legal pronouncement that a piece of legislation is in breach of human rights, and that is a statement that carries an enormous amount of political weight. This political weight comes from the fact that human rights law has enormous normative power, which, to no small degree, comes from the scarcity and rarity of its use.27 It is not hard to see that, if declarations of incompatibility were an everyday occurrence, they would quickly lose their effect, as the ‘shock factor’ inherent in a court pronouncing the existence of a human rights violation would quickly dissipate. The same can be said for human rights law as an overall discipline – in order for it to maintain its normative power, it must be seen as a corpus of law to which recourse is only necessary in extreme situations. Of course, no attempt is made here to suggest that Mann J’s approach would have resulted in the demise of human rights law as a discipline, and in the value of Section 4 declarations – such a conclusion would be extraordinarily melodramatic. However, it is maintained that the normative power of the HRA is a vital component of its success, and that the best way to maintain this power is to ensure it is not overused – to keep its powder dry. The Court of Appeal has recognised this in Fearn and is to be commended for so doing.

Conclusion

Yeon’s suggestion that Mann J’s approach in the High Court in Fearn is “correct and appropriately restrained” is, it is submitted, simply not correct, either as a matter of precedent, or as a question of more general approach. As a matter of precedent, it runs contrary to established lines of authority from the highest level as regards horizontal effect under the HRA, and more generally, it goes against an established trend in HRA adjudication to ensure that, where possible, the HRA’s powder is kept dry. It is further submitted that this approach to the horizontal effect question is also defensible, for well-rehearsed but sound constitutional reasons, but also in order to ensure that the HRA’s normative power is maintained. Thus, for all these reasons, the approach of the Court of Appeal in Fearn is to be commended, as consistent, principled and, above all, restrained.


[1] [2020] EWCA Civ 104.

[2] [2019] EWHC 246 (Ch).

[3] The process by which human rights can affect relationships between private parties.

[4] Thomas Yeon, ‘Public sneaking into private horizontally: the development of private law as supported by the Human Rights Act 1998’ (LSE Law Review, 4th August 2019) https://blog.lselawreview.com/2019/08/public-sneaking-private-horizontally/ accessed 3rd August 2020.

[5] [1997] A.C. 655.

[6] Right to respect for private life.

[7] Although it failed on the facts.

[8] Which confirms that “courts and tribunals” are to be considered “public authorities”. Under Section 6, this requires them to act compatibly with provisions of the ECHR.

[9] para. 74.

[10] See A v BBC [2014] UKSC 25, discussed below.

[11] para. 91.

[12] [2004] UKHL 22.

[13] Jonathan Morgan, ‘(Net) Curtains for Modern Architecture? Privacy, Nuisance and Human Rights’ [2019] 78(2) C.L.J. 273-276.

[14] supra, n.10.

[15] ibid., p.57.

[16] [2014] UKSC 20.

[17] [2020] UKSC 4.

[18] H.W.R. Wade, ‘Horizons of Horizontality’ [2000] 116(Apr) LQR 217-224.

[19] Rt. Hon. Sir Richard Buxton, ‘The Human Rights Act and Private Law’ [2000] 116 LQR 48.

[20] Douglas v Hello! Ltd (No 1)[2001] Q.B. 967.

[21] See von Hannover v Germany[2006] 43 E.H.R.R. 7 as one of many examples.

[22] [2012] UKSC 30.

[23] para. 16.

[24] As it confers the power to effectively rewrite certain pieces of legislation. See R (Baiai) v Home Secretary[2008] UKHL 53 for the House of Lords writing in a 55-word extra clause.

[25] As demonstrated in Campbell.

[26] Section 4(6).

[27] See, inter alia, Chintan Chandrachud, ‘Reconfiguring the discourse on political responses to declarations of incompatibility’ [2014] Oct Public Law 624-641; Meghan Campbell, ‘Reigniting the dialogue: the latest use of the notwithstanding clause in Canada’ [2018] Jan Public Law 1-10; and the premise, if not ultimate diagnosis, in Shona Wilson Stark, ‘Facing facts: judicial approaches to section 4 of the Human Rights Act 1998’ [2017] 133(Oct) L.Q.R. 631-655.

Article by Daniel Henderson
LLM (London School of Econonomics and Political Science) '20