#19884 - Common Law Rights - Constitutional Law

How far can the common law uphold rights?

Liberties v Rights

The HRA ‘rights’ model does not replace common liberties. It is arguable the HRA does not completely conform to a rights-model, nor does the common law conform perfectly to a liberties model.

A pure liberties-based approach would be neutral about the content of such liberties. Normative considerations would be irrelevant. The court would simply examine and apply such laws without caring that an important liberty was at stake.

Before HRA, there were some statutes conferring rights. For example, the protection of the right not to be discriminated against in certain contexts on the grounds of gender and race.

The common law was not neutral about the content of liberties. It in fact seemed to identify some as rights.

Scope of Common Law Rights

Anisminic can be read as protecting the right of access to the courts and due process. Ex p Witham can be read as protecting the right to launch legal proceedings irrespective of financial means. Daly is straightforwardly about protecting the right to communicate confidentially with a legal representative.

The common law protection did not die after HRA (Lord Toulson in Kennedy v Charity Commission). HRA can stimulate the growth of common law rights (Lord Reed in Osborn). It’s therefore not as simple as saying the common law protected certain rights and the HRA now protects more rights. Rather, the HRA has augmented the common law as it stands today.

two separate streams, common law rights and Convention rights, which can overlap, but each of which also has its own different area of exclusivity

(Lord Neuberger, extra-judicially)

Tugendhat J in AKJ acknowledged common law rights are hard to identify as they (a) aren’t codified and (b) the development of them has been affected by an absolute conception of PS.

Protection of Common Law Rights

What the courts can do in this regard depends on who is infringing on the right. If it’s a minister or devolved legislature, the courts can strike down the act. If it’s Parliament and the legislation can’t possibly be read as complying with common law rights, the courts (according to Orthodox theory) can’t do anything.

So, before the HRA there were some liberties elements – if Parliament unambiguously legislated in violation of a ‘right’, the ‘right’ would yield. This makes the ‘right’ seem like a ‘liberty’. But, if devolved legislatures/ministers contravened the right, the courts could strike the action down as contravening common law rights, which is clearly a rights-based approach. Stretching legislation was also a way of protecting rights.

In Unison, Lord Reed observed the right of access to justice is of the common law, not from Europe. He noted that case was primarily argued on the basis of the common law right of access to justice.

Lord Carnwath in Privacy International stated, obiter, it is for the RL to decide how much scrutiny is required, and therefore whether an ouster clause should be upheld. This casts doubt on the assumption courts are stuck if Parliament explicitly legislates in violation of common law rights.

Common Law Protection v HRA Protection

Stephenson suggested the common law in some cases may provide more rights protection than HRA. Underpinning this is a thick RL conception. However, Elliot argues the common law does not make HRA redundant – a repeal could not be met with utter equanimity.

Lord Reed in A v BBC suggested that if common law rights conflict with HRA, HRA prevails. This is in line with orthodox PS.

Are Common Law Rights Fundamental?

Laws thinks fundamental individual rights are vindicated by a higher-order law. Woolf said Parliament, like the courts, derives its authority from the RL. If Parliament were to legislate contrary to RL, the courts would be required to act in an unprecedented manner, acknowledging there are limits on PS which the courts are to uphold. Lord Irvine disagrees, calling these claims exorbitant and representing judicial supremacism.

What is fundamental?

Elliot distinguishes between hard and soft fundamentality. This is not binary – there are degrees. Soft fundamentality tends to involve:

• Pro-rights statutory...