The principal theme of this chapter is that in pursuing the goal of making English tort law compatible with Convention rights, and the related goal of developing tort law so as to allow it to assist in protecting these rights, we should not lose sight of what makes a good tort duty. Lord Bingham commended the opinion that ‘where a common law duty covers the same ground as a Convention right, it should, so far as practicable, develop in harmony with it’. But this chapter aims to unsettle any assumption that such harmony requires the development of tort duties which mirror Convention rights, even in situations where the tort duties will be owed by public bodies. It is more important for newly developed duties to be harmonious with the goals of the law of torts than for them to replicate concepts used by the Strasbourg court.

The first two sections of the chapter explain how we ought to think about tort duties and the process of designing them. Subsequent sections describe some obstacles in the way of a conclusion that judges in England are obliged to design tort duties to mirror Convention rights, and identify some of the features of Convention rights which are most likely to cause difficulties if they are directly incorporated into tort duties.