The positive duty of prevention in the common law and the Convention

Legal Studies ◽  
2019 ◽  
Vol 40 (2) ◽  
pp. 209-229
Author(s):  
Achas K Burin
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Common Law ◽  
Positive Duty ◽  
New Approach ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Right ◽  
The Relationship

AbstractTwenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

20. Human Rights IV: The Impact of the Human Rights Act 1998

2021 ◽  
pp. 528-578
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some of the leading cases in which the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act has triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

11. Judge-made law

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. The interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

The right to healthcare

2020 ◽  
pp. 195-208
Author(s):  
Ann Marie Gray
Keyword(s):  
Human Rights ◽  
Social Care ◽  
Health And Social Care ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Right ◽  
The Impact ◽  
The Relationship

This chapter explores the relationship between human rights and health and social care. It begins by setting out the main international mechanisms, at UN, EU and ECHR levels, and the obligations they place on governments. It then discusses the impact of international and domestic human rights instruments through an examination of developments in social care policy, and with regard to reproductive health care rights in Northern Ireland. It also highlights issues relating to devolution and the implementation of human rights in the UK and in particular the role of the Human Rights Act (1998).

11. Judge-made law

2020 ◽  
pp. 243-250
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
Rights Protection ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Home Department

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords. This case considered whether a blanket policy excluding prisoners from cell searches was a proportionate response that was necessary to achieve the aim of that policy. There is also discussion of whether the common law could provide an alternative system of rights protection to that under the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division)

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
High Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Lord Chancellor

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division). This case concerns the constitutionality of fees payable to access court processes where the applicant’s limited financial means render them unable to pay those fees. More generally it concerns the capacity of the common law to provide rights protections, notwithstanding the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

21. Human Rights V: The Impact of the Human Rights Act 1998

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some leading cases wherein the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

scholarly journals Making your case to the mental health review tribunal in England and Wales

2005 ◽  
Vol 29 (4) ◽  
pp. 149-151 ◽  
Author(s):  
George J. Lodge
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Family Life ◽  
Common Law ◽  
Public Hearing ◽  
Reasonable Time ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Right ◽  
Health Review

The function of the mental health review tribunal is defined in Part V of the Mental Health Act 1983. Together with statute and Common Law, it provides safeguards to those detained under the Act. The provisions of the Human Rights Act 1998 have strengthened these safeguards. The key articles in Schedule 1 of the Human Rights Act are 5(1)(e), relating to the lawful detention of persons of unsound mind; 5(4), providing that the lawfulness of such detention shall be decided speedily by a court; 6, providing for a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law; and 8, establishing the right to respect for a private and family life. The latter is relevant to disclosure, nearest relatives' rights, and treatment.

scholarly journals Article 2 of the Human Rights Act 1998 and the treatment of prisoners

2009 ◽  
Vol 15 (6) ◽  
pp. 444-450 ◽  
Author(s):  
Martin Curtice ◽  
John Sandford
Keyword(s):  
Human Rights ◽  
Psychiatric Hospitals ◽  
Case Law ◽  
Positive Duty ◽  
State Custody ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Media ◽  
Negative Duty ◽  
The Right

SummaryPeople detained in prisons, psychiatric hospitals, police custody and immigration detention centres remain a cause of concern, particularly to professionals, politicians and the media. As the number of people detained by the state increases, Courts have been taking an increasing interest in cases in which individuals have died in state custody. Such cases are subsumed under Article 2 of the Human Rights Act 1998 – the right to life. Article 2 case law has elucidated key principles that can be applied in practice. Importantly, it imposes on states not only a negative duty not to take life intentionally or negligently, but also a positive duty to safeguard life. The inherent positive obligations have two aspects: first, there is a duty to provide an effective and impartial investigation in cases of death resulting from the activities of state officials, and second, a duty to safeguard and protect life.

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