Hardcover(Second Edition)
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Overview
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 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.'
Product Details
| ISBN-13: | 9781841139074 |
|---|---|
| Publisher: | Bloomsbury Academic |
| Publication date: | 02/23/2017 |
| Series: | Hart Studies in Private Law , #23 |
| Edition description: | Second Edition |
| Pages: | 352 |
| Product dimensions: | 6.14(w) x 9.21(h) x 0.81(d) |
About the Author
Table of Contents
Preface to Second Edition v
Table of Cases xi
Table of Legislation xxiii
1 Tort Law and Human Rights 1
Introduction 1
Context 1
Context-The ECHR and the Development of English Law Prior to the HRA-the Monist/Dualist Divide 5
Customary International Law 9
The European Union 10
The Second Edition 12
Conclusion-Structure of the Second Edition 14
2 A Human Rights Based Approach to Tort Law 17
Introduction 17
Why Tort Law and Human Rights? 18
What are 'Human' Rights? 20
Who is Bound by Human Rights Obligations? 21
The Right to an Effective Remedy 25
Tort Law Theory and Human Rights Law 27
Functionalism and the External Point of View 32
Concluding Remarks 34
3 The Human Rights Act 35
Introduction 35
Aims of the HRA 36
Law-Making under Section 2 HRA 39
Observations by English Courts Regarding the Section 2(1) Obligation 42
Rejection of the 'Mirror' Principle 46
Section 2 and the Doctrine of Precedent 48
The Excluded Rights 49
Article 1-Jurisdiction 49
State Agent Authority and Control 50
Effective Control over an Area 51
Smith v MOD-Application of Al-Skeini by the Supreme Court 52
Application Beyond the Armed Forces? 52
The Section 3 Interpretative Obligation 53
Horizontally-The Impact of the HRA on Non-State Actors 60
The Section 6 Obligation and the Courts 67
Interpreting the Section 6 Obligation: 'Compatibility' and 'Convention Rights' 69
Section 6-Remedies against Public Authorities 77
Indirect Effect of the HRA in Actions against Public Authorities 81
Concluding Remarks on Section 6 HRA 82
Remedies under the Act-Sections 7 and 8 HRA 83
Victim Status 84
Limitation 86
Remedies 87
Concluding Remarks 94
4 The European Convention on Human Rights 95
Part 1 General Principles of Interpretation 95
Introduction 95
General Principles of Interpretation Applied by Strasbourg 98
The Margin of Appreciation Doctrine 103
The Margin of Appreciation in English Law-Deference 106
Positive Obligations 107
Part 2 The ECHR Protected Rights 108
Article 2 The Right to Life 108
The Positive Obligation to Protect Life 109
Framework Obligation 109
The Positive Operational Obligation under Article 2 110
Can Professional Negligence be a Breach of the Operational Obligation under Article 2? 114
The Procedural Obligation to Investigate 118
Article 3 Freedom from Torture or Inhuman or Degrading Treatment or Punishment 119
Positive Obligations 120
Ill-Treatment by Third Parties 120
Duty to Investigate 123
Article 4 Protection from Slavery and Forced Labour 125
Article 5 Right to Liberty and Security 126
The Gateway to Article 5-'Deprivation of Liberty' 128
Austin v Commissioner of Police 128
Austin at the ECtHR 132
Austin in the Court of Protection 133
Article 6 Right to a Fair Trial 134
The Backlash against Osman-Z v United Kingdom 139
Article 6 and State Immunity 143
Article 7 Non-Retro activity 146
Article 8 The Right to Respect for Private and Family Life, Home and Correspondence 146
Parental/Family Rights 149
Article 9 Freedom of Thought, Conscience and Religion 150
Article 10 Freedom of Expression 151
Article 11 Freedom of Assembly and Association 151
Article 14 Prohibition of Discrimination 152
Article 1, Protocol 1-Protection of Property 153
Article 2, Protocol 1-The Right to Education 154
5 Public Authority Liability Part 1-The Impact of the ECHR on the Common Law 155
Introduction 155
The Impact of Osman v UK 158
Privacy 164
Misfeasance in Public Office 168
False Imprisonment 171
Nuisance 172
Remedies in Nuisance-The Influence of the ECHR 178
The Right to Respect for Private Life and Home of those without a Property Interest-does the Tort of Private Nuisance Fulfil the UK's obligations under the ECHR? 184
Concluding Remarks 186
6 Public Authority Liability Part 2-Positive Obligations and Omissions 187
Introduction 187
Positive Obligations on Public Authorities under the ECHR 192
Legal and Administrative Framework 192
Preventive Operational Measures to Protect the Right to Life-the Operational Obligation 195
Causation 197
Article 2 in English Law 198
The Duty to Investigate 204
The Impact of the HRA on the Common Law 204
The Hill Principle, Osman v United Kingdom and their Effects 205
The Fate of X (Minors) and Hill Following the Enactment of the HRA 206
Hill v Chief Constable of West Yorkshire 212
Smith v Chief Constable of Sussex Police 215
Implications of Non-Retrospectivity of the HRA and 'Omissions' Doctrine-the So-What Question? 220
The Non-Retrospectivity Hurdle 223
Remedial Obligations in the ECHR 223
Coherence 228
Conclusion 231
7 Defamation and Freedom of Expression 233
Introduction 233
The View from Strasbourg-Article 10 Jurisprudence 242
The Response of English Courts to the Demands of Article 10 246
Serious Harm 246
Serious Harm and Corporations 250
Defences 252
Publication on a Matter of Interest 252
A Statement on a Matter of 'Public Interest' 257
'Reasonable Belief' that Publication was in the Public Interest 257
From 'Fair Comment' to 'Honest Opinion' 259
Academic and Scientific Debate 262
Costs 262
Injunctive Relief 265
8 Privacy-From Misuse of Private Information to Autonomy 269
Introduction 269
Privacy Jurisprudence under the ECHR 272
Developments in English Law 279
Reasonable Expectation of Privacy Test 289
The Balancing Act 293
Injunctive Relief 295
From Misuse of Private Information to Intrusion-Gulati v MGN Ltd 296
Damages 297
Concluding Remarks on the Tort of Misuse of Private Information 298
Autonomy 299
9 Concluding Remarks 307
Index 313