Damages and Human Rights

Description

Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book’s focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts. The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current ‘mirror’ approach which ties the domestic approach to damages to the European Court of Human Rights’ approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration. Foreword Preface Acknowledgements Table of Contents Table of Cases Table of Legislation Table of International Treaties and Conventions 1. Introduction I. The Structure of the Argument Part 1: A Tort-Based Approach to Damages for Human Rights Breaches 2. The Tort Framework I. Setting the Scene: Vindication, Damages
and Torts Theory II. Distinguishing Vindicatory and Compensatory Torts III. Vindication and Damages IV. Conclusions 3. A Tort-Based Approach to
Human Rights Damages I. A Tort-Based Approach as a Matter of Principle II. The Tort-Based Approach: Core Features III. The Relationship Between Human Rights Damages
and Other Judicial Remedies IV. The Tort-Based Approach and the Provisions of the HRA V. Flawed Tort-Based Approaches: the United States Constitutional Tort Jurisprudence Part 2: Human Rights Damages and the PublicLaw–Private Law Distinction 4. The Public Law-Private Law Distinction Section 1. The Public Law-Private Law Distinction as a Tool for Legal Development I. Lack of an Anchor II. Choppy Seas: The Implications of 'Publicness' III. Oceans or Seas of Doctrine? The Pluralistic
Nature of Public Law Doctrine IV. Pulling Into Port: Conclusion Section 2. The Public Law-Private Law Distinction and Human Rights Damages I. Protection of the Public and Human Rights Damages:
the Approach in Anufrijeva II. Individual Rights and the Public Interest
Theory of Public Law III. Conclusion: Slaying Chimaera IV. Is the Public Interest Approach the Only
'Public Law' Approach? Part 3: Alternative Approaches to Damages forHuman Rights Breaches 5. Human Rights Damages and 'Just Satisfaction': The 'Mirror' Approach Section 1. The Terms of the HRA I. Principles or Practice? II. A Section 2(1) Analogy? III. The 'Ordinary' Approach Section 2. The Supranational Dimension I. Supranational versus Domestic Context II. Problematic Jurisprudences:
Supranational and Municipal Section 3. The Methodology of the Mirror Approach I. A Problematic Method II. Quantum III. Inconsistent Method and the Risk of Skewed Interpretation IV. '[O]ne damn thing after another' Section 4. The Future of the Mirror Approach Post-Faulkner I. Delphic Dicta II. Beginnings of a Liberalisation of Approach? III. A British Bill of Rights? Section 5. Overview 6. Interest-Balancing Approaches Section 1: Doctrinal Analysis of the Interest-Balancing Approach I. The Interest-Balancing Approach and the Terms of the HRA II. The Interest-Balancing Approach and
Convention Requirements III. The Interest-Balancing Approach and Fundamental Principles of English Law Section 2: Normative Analysis of the Interest-Balancing Approach I. Concerns that May Justify an Interest-Balancing Approach II. The Importance of Remedying Rights-Violations III. Prejudice to the Public Interest: Only in Public Law? IV. Is the Interest-Balancing Approach Necessary? V. Public Interest Factors: A Critical Analysis VI. Rule-of-Law and Other Concerns Raised by the Discretionary Nature of the Interest-Balancing Approach VII. Refining the Interest-Balancing Approach Section 3. Conclusions 7. Other Methods of Limiting
Human Rights Damages I. Degree of Loss Under Article 41, ECHR II. EU Law, Francovich Liability and the 'Sufficiently
Serious' Criterion III. Immunities from Suit in US Constitutional Tort Law 8. Conclusion Index