E.C.H.R. Remedies From a Common Law Perspective

2000 ◽  
Vol 49 (3) ◽  
pp. 517-527 ◽  
Author(s):  
Sir Robert Carnwath
Keyword(s):  
Title I ◽  
Common Law ◽  
Law Reform ◽  
Full Account ◽  
Legal Remedy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
Difficult Subject

In this paper, I shall attempt to take a practical view of some of the issues which the common law courts will be facing in the coming months, in granting remedies under the Human Rights Act 1998. I shall be looking at these issues from the viewpoint of a judge, sitting regularly in judicial review cases, and also as Chairman of the Law Commission, which has for many years taken full account of the Convention in its law reform proposals. Notwithstanding the width of the title, I shall concentrate on remedies in damages, since that is the area to which the Law Commission's work has been mainly directed in recent times. I shall be referring to the recent LCD Consultation Paper on proposed rules under the Act.1 I shall steer clear of the difficult subject of the “declaration of incompatibility”, which has been fairly described as “not a legal remedy but a species of booby prize…”.2

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. 

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.

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.

1. Introduction

2021 ◽  
pp. 1-26
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Direct Evidence ◽  
Circumstantial Evidence ◽  
Law Reform ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Basic Concepts ◽  
The Law ◽  
Law Of Evidence

Chapter 1 examines a number of basic concepts and distinctions in the law of evidence. It covers facts in issue and collateral facts; relevance, admissibility, and weight; direct evidence and circumstantial evidence; testimonial evidence and real evidence; the allocation of responsibility; exclusionary rules and exclusionary discretions; free(r) proof; issues in criminal evidence; civil evidence and criminal evidence; the implications of trial by jury; summary trials; law reform; and the implications of the Human Rights Act 1998. This chapter also presents an overview of the subsequent chapters.

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.

19. The doctrine of frustration

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Islamic Republic ◽  
Islamic Republic Of Iran ◽  
Commercial Purpose ◽  
The Common ◽  
The Law

This chapter investigates the scope of the doctrine of frustration which was developed to deal with cases where events occur after a contract is made which render the agreement illegal, or impossible to perform, or which fundamentally change the nature of the obligations undertaken by the parties. The doctrine operates within strict limits and its use is restricted in cases where, although the commercial purpose of the contract has been drastically affected by unforeseen events, the performance of the contract is still possible. The position under the Law Reform (Frustrated Contracts) Act 1943 and under the common law, including for example, the recent cases of Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Ltd and Olympic Airlines SA (in Special Liquidation) v ACG Acquisition XX LLC, are examined, collectively demonstrating how the doctrine currently operates.

1. Introduction

Evidence ◽  
2018 ◽  
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Direct Evidence ◽  
Circumstantial Evidence ◽  
Law Reform ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Basic Concepts ◽  
The Law ◽  
Law Of Evidence

Chapter 1 examines a number of basic concepts and distinctions in the law of evidence. It covers facts in issue and collateral facts; relevance, admissibility, and weight; direct evidence and circumstantial evidence; testimonial evidence and real evidence; the allocation of responsibility; exclusionary rules and exclusionary discretions; free(r) proof; issues in criminal evidence; civil evidence and criminal evidence; the implications of trial by jury; summary trials; law reform; and the implications of the Human Rights Act 1998. This chapter also presents an overview of the subsequent chapters.

Reforming the Law of Evidence in Nigeria

2000 ◽  
Vol 44 (1) ◽  
pp. 128-129
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Technological Advances ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

The Nigerian Law Reform Commission has recently published a Report on the Reform of the Evidence Act. This was in response to a government directive to “review and reform our Evidence Act to ensure that its application more effectively facilitates the dispensation of justice in our courts”. The Report notes that the Evidence Ordinance was based on Stephen's Digest of the Law of Evidence and on the common law of England as it was in 1943. Understandably, the Report recognizes that the law of evidence had become outdated, especially in view of technological advances. As it notes:

Time for an English Commercial Code?

1997 ◽  
Vol 56 (3) ◽  
pp. 516-536
Author(s):  
Dame Mary Arden
Keyword(s):  
Common Law ◽  
Law Reform ◽  
England And Wales ◽  
Commercial Code ◽  
Unique Experience ◽  
The Common ◽  
Systematic Development ◽  
The Law ◽  
Lord Chancellor ◽  
Law Commission

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

6. Trade secrets, confidential information, and the protection of private information

2019 ◽  
pp. 75-94
Author(s):  
Tim Press
Keyword(s):  
Public Interest ◽  
Private Information ◽  
Common Law ◽  
Trade Secrets ◽  
The Public ◽  
Separate Branch ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
The Right

This chapter focuses on the law of breach of confidence, which protects trade secrets and privacy. It is judge-made law, with its origins in equity. The action for breach of confidence now resembles a common law cause of action, but its equitable basis is still evident in the flexibility and discretion the judges adopt in deciding cases. The Human Rights Act 1998 required the courts to implement the right to private and family life. The courts have done this, in cases concerning private information, by extending the law to protect privacy where the information concerned was not secret. This is now regarded as a separate branch of the law. Special considerations also apply in relation to the duties employees owe to their employer both during and after their employment. There is a defence to an action for breach of confidence where publication is in the public interest.

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