"English Law has so far failed to reconcile the demands of the emerging European human rights jurisprudence with its instinctive tendency to create 'public interest immunities' in respect of the negligence liability of public bodies. Reform of the law is needed. " Introduction The aims of this essay are to critically discuss the statement, "English Law has so far failed to reconcile the demands of the emerging European human rights jurisprudence with its instinctive tendency to create 'public interest immunities' in respect of the negligence liability of public bodies.
Reform of the law is needed. " From this I will establish reasoned arguments as to whether or not I agree or disagree with the statement, illustrating my answer by reference to case law and statutory provisions. What is the relevant law? Relevant laws for the argument is contained within Human Rights Acts 1998, section 6, Acts of public authorities, which I extracted from Common Law (Law 103/220) 2002 - 2003 Statutory Materials Handbook. Which states:
(1) It is unlawful for a public authority to act in a way that is incompatible with a convention right. (2) Subsection (1) does not apply to an act if - (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes - (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6)"An Act" includes a failure to act but does not include a failure to - (a) introduce in, or lay before, Parliament a proposal for legislation; or (b)make any primary legislation or remedial order. Journal article The journal article I have read is that of Paula Gilker, in which she sets out to demonstrate that reform of the current law is needed. The article questions whether the case of Osman v Ferguson1 dictates that maybe different approaches should be taken against negligence claims that are brought against Police Officers.
And also whether or not the immunities that can apply for the Police should still be enforced, be it qualified or blanket immunity. What are the problems with the law? As set out in Hill v Chief Constable of West Yorkshire2, Lord Keith manages to distinguish the fine line between when it is appropriate to apply the blanket cover of immunity to the Police and when not to, "The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.
The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is the most advantageous way to deploy the available resources. The result of liability for negligence would be a significant diversion of Police manpower and attention from their most important function, that of the suppression of crime. "3 A major problem with the law, is that it is consistent with the rules against liability for omissions that the emergency services have no duty to answer 999 calls.
And so I believe that upon answering them is where the problem lies. As when the calls are answered they are prioritised in relation to their importance to the service that they require. And if problems arise from the way they are prioritised, for example if one person dies from a fight that is happening, but the Police place priority on a football riot. And so I believe a way around this problem would be to privatise the public services, so that if any citizens would like to take the services to court then the immunity would not apply, and so a fair and impartial hearing would be able to take place, meaning justice will be done.