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CHAPTER 1 Introduction

1.4 Tort law and the Human Rights Act 1998 The Human Rights Act (HRA) 1998 incorporates the majority of the European Convention on Human Rights (ECHR) into UK law. 90 What is the significance of this for tort law? In the first instance, it imposes a duty on the state to respect and act consistently with the human rights set down in the Convention. These rights include: the right to life (Art 2), the right not to be subjected to inhuman or degrading treatment (Art 3), the right to liberty and security (Art 5), the right to a fair trial (Art 6), the right to respect for private and family life (Art 8) and the right to freedom of expression (Art 10). Accordingly, where the state does not respect or act consistently with these rights, the HRA enables an individual to make a claim against the state (s 7). This is what is known as ‘vertical effect’. 91 One example of such claims, discussed in Chapter 6 , is that those brought against local authorities or the police are not tort claims, alongside, for example, an argument that the defendant also owes the claimant a duty of care in the tort of negligence. 92 The HRA also has ‘horizontal effect’ on tort law claims between private individuals. This stems from section 6 of the HRA which makes it ‘unlawful for a public authority to act in a way which is incompatible with a Convention right’ (s 6(1)). What this appears to suggest is that courts (as ‘public authorities’ by virtue of s 6(3)) when deciding cases or framing legal rules are under a duty to respect the litigants’ human rights (just as they are under an express obligation to read and give effect to legislation in a way that is HRA-compliant (s 3(1))). This is significant for the purposes of tort law because it would seem to mean that when deter mining the existence and scope of liability in tort, the courts must ensure that their decisions are HRA-compatible. That in turn would seem to suggest that the content of the law of tort, and hence the rights and duties which exist between private individuals, must include ade quate protection of the rights provided for in the Act (this is what is meant by the HRA hav ing ‘horizontal’ effect). To see how this might work, take the following example. One Convention right in respect of which English tort law has historically failed to offer much protection is the right to pri vacy (Art 8). As such, before the HRA, a claimant who went to court complaining that the defendant had interfered with their privacy would more than likely see their claim dismissed on the basis that it disclosed no cause of action. How has the HRA changed this? The HRA allowed a claimant, in bringing such a claim, to argue that if the court does not recognise their claim it will be failing in its duty as a public body to protect their right to privacy: in other words, that the effective protection of the defendant’s right to privacy required the courts to recognise that an invasion of the claimant’s privacy is an actionable wrong. The courts initially took the view that this did not require them to recognise new torts, but to be open to modifying existing torts to ensure that they are HRA-compatible: [The] obligation on the court does not seem to me to encompass the creation of a free-standing cause of action based directly upon the articles of the convention . . . The duty of the court, in PROPERTY OF OXFORD UNIVERSITY PRESS

90. On the relationship between tort law and the HRA, see generally Jane Wright Tort Law and Human Rights (Hart 2001). 91. It is important to note that this is not a claim in tort. It is a public, not a private, law claim, i.e. it creates a remedy in public law to enforce a Convention right. 92. Human rights arguments may also be raised in the context of false imprisonment and harassment (see discussion in Chapter 15 ), defamation ( Chapter 17 ), privacy ( Chapter 16 ) and nuisance ( Chapter 18 ).