Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.     

Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.     

The Enjoyment of Rights and Freedoms: A New Conception of the 'Ambit' under Article 14 ECHR

Article 14 of the European Convention on Human Rights, as applied by the UK judiciary under the Human Rights Act 1998, is in danger of becoming as 'parasitic' as it is often described. Judges have inappropriately narrowed the scope of the 'ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality. The emerging approach departs from Strasbourg jurisprudence, and fails to give full effect to the language and intent of Article 14. This trend need not continue. This article begins the process of fashioning a new conception of the ambit of Convention articles: one that could change the fortunes of Article 14 cases in the UK, but that flows naturally from the precedents of the European Court of Human Rights, and gives effect to the spirit of the HRA.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Hearsay and Human Rights: Al‐Khawaja in the Grand Chamber

This note analyses the European Court of Human Rights' Grand Chamber judgment in Al‐Khawaja and Tahery v United Kingdom, and gives it a cautious welcome. The note suggests how English Courts might respond to the judgment and concludes by assessing justifications for strong confrontation rights and the wider political context of the Grand Chamber's decision.