Tort Law and Human Rights

Description

This is a completely revised and expanded second edition, building on the first edition with two principal aims: to elucidate the role that domestic tort principles play in securing to citizens the human rights standards laid down in the European Convention on Human Rights, including the new ‘remedy’ under the Human Rights Act 1998; and to evaluate tort principles for compliance with those standards. The first edition was written when the Human Rights Act 1998 was newly enacted and many questions existed as to its potential impact on tort law. Answers to many of the questions, which were raised at that time, are only now emerging. Therefore, the text has been updated to reflect these developments. Whether it is appropriate to attribute particular goals and functions to tort law is highly contested and the analysis begins by locating the discussion within these contemporary debates. The author goes on to examine the extent to which the action against public authorities under section 7 of the Act has impacted on the development of common law principles, as well as the issue of the horizontal effect of the Act between non-state actors. New chapters include: ‘A Human Rights Based Approach to Tort Law’ and ‘Public Authority Liability and Privacy—From Misuse of Private Information to Autonomy’. Volume 23 in the series Hart Studies in Private Law PREFACE TO SECOND EDITION CONTENTS TABLE OF CASES TABLE OF LEGISLATION 1 Tort Law and Human Rights Introduction Context-The ECHR and the Development of English Law Prior to the HRA-the Monist/Dualist Divide The European Union The Second Edition Conclusion-Structure of the Second Edition 2 A Human Rights Based Approach to Tort Law Introduction Why Tort Law and Human Rights? What are "Human" Rights? Who is Bound by Human Rights Obligations? The Right to an Effective Remedy Tort Law Theory and Human Rights Law Functionalism and the External Point of View Concluding Remarks 3 The Human Rights Act Introduction Law-Making under Section 2 HRA Observations by English Courts Regarding the Section 2(1) Obligation The Section 3 Interpretative Obligation Horizontality-The Impact of the HRA on Non-State Actors The Section 6 Obligation and the Courts Section 6-Remedies against Public Authorities Indirect Effect of the HRA in Actions against Public Authorities Concluding Remarks on Section 6 HRA Remedies under the Act-Sections 7 and 8 HRA Concluding Remarks 4 The European Convention on Human Rights Part 1-General Principles of Interpretation General Principles of Interpretation Applied by Strasbourg Part 2-The ECHR Protected Rights Article 2-The Right to Life Article 3: Freedom from Torture or Inhuman or Degrading Treatment or Punishment Article 4-Protection from Slavery and Forced Labour Article 5: Right to Liberty and Security Austin at the ECtHR Austin in the Court of Protection Article 6-Right to a Fair Trial The Backlash against Osman-Z v United Kingdom Article 7-Non-Retroactivity Article 8-The Right to Respect for Private and Family Life, Home and Correspondence Article 9-Freedom of Thought, Conscience and Religion Article 10-Freedom of Expression Article 11-Freedom of Assembly and Association Article 14-Prohibition of Discrimination Article 1, Protocol 1-Protection of Property Article 2, Protocol 1-The Right to Education 5 Public Authority Liability Part 1-The Impact of the ECHR on the Common Law Introduction The Impact of Osman v UK Privacy Misfeasance in Public Office False Imprisonment Nuisance Concluding Remarks 6 Public Authority Liability Part 2-Positive Obligations and Omissions Introduction Positive Obligations on Public Authorities under the ECHR Legal and Administrative Framework Preventive Operational Measures to Protect the Right to Life-the Operational Obligation Article 2 in English Law The Impact of the HRA on the Common Law Implications of Non-Retrospectivity of the HRA and "Omissions" Doctrine-the So-What Question? The Non-Retrospectivity Hurdle Remedial Obligations in the ECHR Coherence Conclusion 7 Defamation and Freedom of Expression Introduction The View from Strasbourg-Article 10 Jurisprudence The Response of English Courts to the Demands of Article 10 From "Fair Comment" to "Honest Opinion" 8 Privacy-From Misuse of Private Information to Autonomy Introduction Privacy Jurisprudence under the ECHR Developments in English Law Reasonable Expectation of Privacy Test The Balancing Act Injunctive Relief Damages Concluding Remarks on the Tort of Misuse of Private Information Autonomy 9 Concluding Remarks INDEX