State liability for torts has been bedevilled by the mistaken view that the applicable principles differ when compared to those found in relation to private defendants. The unfortunate importation of public law concepts has led to uncertainty. The ‘red herrings’ which have distorted this area are: the policy/operational divide, intra vires, ultra vires, general reliance, policy arguments, and the view that the duty of care can be abandoned in this context. Further, the relationship between private law and the Human Rights Act 1998 has been misunderstood. The impact of the Act is, in many ways, to make the European Convention on Human Rights and Fundamental Freedoms less important. There is one true public law wrong, misfeasance in a public office, of recent origin and limited scope.
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