Academic

McLay on Choosing Between Tort Law & the Human Rights Acts in the UK, Canada, & New Zealand

By Lawrence Solum

Geoff McLay (Victoria University of Wellington - Law Faculty) has posted Constitutional Rights - Tort Law or the Human Rights Acts: Towards a Framework on SSRN. Here is the abstract:

Courts in the United Kingdom, Canada, and New Zealand have similarly struggled to define the role of damages in remedying breaches of the United Kingdom?s Human Rights Act 1998 (HRA), the Canadian Charter of Rights and Freedoms or the New Zealand Bill of Rights Act 1990 (NZBORA). Most problematically those courts have not identified a methodology through which the competing claims of common law and constitutional compensation can be filtered. This article seeks to continue a debate on such a methodology begun by Professor Steele who argued, correctly in my view, that the choice between Human Right Act 1998 (UK) actions and tort actions has to depend on the function that can be associated to either. By drawing on a number of prominent cases this article suggests a framework through which those interactions can be analysed. In fact, the article argues that rather than there being a single framework, at least four are possible. Like all models these do not necessarily reflect the reality of how particular cases might be resolved, but rather provide a framework against which what courts do might be compared. This article attempts to categorise the different ways in which judges have approached the interaction of common law torts in government liability cases where there is the possibility of constitutional damages. It suggests four models of interaction: first, ?parallel development?; second, the mixing of constitutional and tort claims (the cocktail approach); third, field influence, where rather than excluding the other, the values of one might influence the development of liability, or the restrictions of liability in the other; and, finally, field pre-emption, where one legal analysis dominates to the exclusion of the other. While the article illustrates the models by looking a number of well-known cases, it does not purport to be a comprehensive review of the case law.

Full post as published by Legal Theory Blog on February 09, 2011 (boomark / email).