Common Law Constitutional Rights

Mark Elliott, Kirsty Hughes, Mark Elliott, Kirsty Hughes

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509906888
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

There is a developing body of legal reasoning in the United Kingdom Supreme Court in which members of the senior judiciary have asserted the primary role of common law constitutional rights and critiqued legal arguments based first and foremost on the Human Rights Act 1998. Their calls for a shift in legal reasoning have created a sense amongst both scholars and the judiciary that something significant is happening. Yet despite renewed academic and judicial interest we have limited insight into what common law constitutional rights we have, how they work and what they offer. This book is the first collection of its kind to systematically explore both the content and role of individual common law constitutional rights alongside the constitutional significance and broader implications of these developments. It therefore contributes not only to our understanding of what the common law might be capable of offering in terms of the protection of rights, but also to our understanding of the nature of the constitutional order of which such rights are an integral part.

1

The Nature and Role of Common Law Constitutional Rights

MARK ELLIOTT AND KIRSTY HUGHES

I.Common Law Constitutional Rights on the Agenda

This book was first conceived following a raft of United Kingdom Supreme Court judgments championing common law constitutional rights. Cases such as Osborn v Parole Board,¹ Kennedy v Charity Commissioner² and A v BBC³ all saw judges turning to common law constitutional rights. At that time various members of the senior judiciary asserted the primary role of common law constitutional rights and critiqued legal arguments based first and foremost on the Human Rights Act 1998 (HRA). For example, in Osborn Lord Reed declared that the HRA

does not supersede the protection of human rights under the common law or state, or create, a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Human Rights Act when appropriate.⁴

Equally in Kennedy v Charity Commissioner Lord Mance critiqued what he regarded as a tendency following the enactment of the HRA ‘to see the law in areas touched on by the Convention solely in terms of the Convention rights’.⁵ In his view ‘the Convention rights represent a threshold protection’ but ‘especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.’⁶ Indeed Lord Mance asserted that ‘the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene’.⁷ Lord Toulson joined in lamenting the ‘baleful and unnecessary tendency to overlook the common law’, declaring that ‘[i]t needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary’.⁸

The combined effect of these dicta was to create a sense amongst both scholars and the judiciary that something significant was happening, that there was a shift occurring in judicial reasoning and that this was intended to stimulate common law arguments in legal submissions in order to reinvigorate the common law.⁹ At the time both the President and Deputy President of the Supreme Court acknowledged this sense of movement, appearing to signify judicial engagement with and a willingness to return to the common law. Indeed Lady Hale went as far as to deem this development evidence of ‘UK constitutionalism on the march’.¹⁰ Meanwhile, Lord Neuberger acknowledged that judges ‘have tried to bring the common law back to centre stage’,¹¹ expressing the view that there are ‘now two separate seams, common law rights and Convention rights, which can overlap, but each of which also has its own different area of exclusivity’.¹² Certainly this renewed focus upon common law rights appeared to present itself across the Supreme Court. Consequently, five years ago, common law constitutional rights appeared to be in receipt of extensive judicial support at the highest level both in Supreme Court judgments and in extra-judicial addresses.

Scholars offered various explanations for this development, one of which was that this was a strategic judicial move to prepare English law for the possible repeal of the HRA. Others identified renewed emphasis on the common law as part of a broader development of common law reasoning. In any event academics differed on the implications of this move. Scholars such as Masterman and Wheatle highlighted the ‘resurgence’ of the common law and its potential to operate as an ‘independent source of rights’, taking this as a sign ‘not only of [the common law’s] resilience but also of its continuing ability to recalibrate itself in the face of new challenges and current needs’.¹³ Equally Stephenson suggested that these cases ‘suggest that the common law remains a dynamic and important source of rights protection in the UK and may, in some circumstances, even provide more protection for rights than the HRA.’¹⁴ Whilst another scholar asserted that it is now evident ‘that the common law has developed its protection of fundamental rights in a way that cannot be deprecated as being no more than a domestic handmaiden to the HRA’¹⁵ others, however, were more wary about the likely impact of these cases in domestic law, cautioning that such rights were unlikely to replicate the rights protected by the HRA and that it was ‘premature to argue that “the force is with us” in developing common law rights, unless and until some underlying principles are modified’.¹⁶ Indeed one of us noted at the time that it would be ‘unrealistic to argue that domestic law in this area is so extensive, rigorous, and resilient as to render the HRA–ECHR [regime] essentially redundant, such that (for instance) repeal of the former and withdrawal from the latter are prospects that can be met with utter equanimity’.¹⁷

Although the flurry of Supreme Court cases explicitly engaging with the primary role of common law constitutional rights has arguably dissipated in the last two or three years, there have nevertheless been significant further developments. Two Supreme Court cases in particular are worth emphasising here and are discussed further in various chapters throughout this book, namely Unison¹⁸ and Privacy International.¹⁹ In Unison the Supreme Court held that the imposition of fees on those wishing to bring claims to the Employment Tribunal effectively denied access to justice to potential claimants. In coming to the decision that the Fee Orders were unlawful Lord Reed emphasised that ‘the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law’.²⁰ He also noted that Unison was ‘argued primarily on the basis of the common law right of access to justice’;²¹ an indication that at least in the access to justice context counsel are heeding judicial calls to bring the common law centre stage.

The landmark Supreme Court decision in Privacy International also brought to the fore the role of the common law. In determining that section 67(8) of the Regulation of Investigatory Powers Act 2000 does not oust the supervisory jurisdiction of the High Court over decisions of the Investigatory Powers Tribunal, Lord Carnwath stated (albeit obiter, but with Lady Hale and Lord Kerr in concurrence) that there is

a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.²²

This dictum, albeit obiter, has been seized upon as further evidence of the common law turn in English law. It is relevant to one of the core questions surrounding the potential potency of common law constitutional rights: namely, the extent to which they are subordinate to parliamentary sovereignty. Thus although there have arguably been fewer explicit calls for the primacy of common law constitutional rights since the renewed interest that seemed to peak in 2014, the common law tide has not turned.

When we commenced this project we were interested in what these common law constitutional rights were, how they work, what they offer and what they might mean for the protection of rights in English law. Those questions remain pertinent today. However, since we began this project the need to take a hard look at these rights has become ever more pressing. Part of the initial impetus for our inquiry was the fact that repeal of the HRA had been favoured in certain political quarters for some time.²³ That remains the case today. In the past, comfort was often sought (by those who view the prospect of HRA repeal with horror) in the notion that even without the HRA the UK would likely remain a member of the European Convention on Human Rights (ECHR) and thus bound to act compatibly with those rights in international law. Indeed a sense of security was provided by the notion that it was doubtful that the UK would seek to withdraw from the ECHR altogether given that there is, at the very least, considerable uncertainty as to whether it would be possible to remain a member of the European Union following such a step.²⁴ Any perceived EU/ECHR safeguard was however, dealt a fatal blow by the Brexit referendum in 2016. The obligations of EU membership are no longer any obstacle to ECHR withdrawal, while very little imagination is needed in order to envisage the ECHR entering, in short order, into the crosshairs of those who advocated Brexit. The future of the ECHR/HRA regime for the protection of rights in domestic law is consequently far more precarious and contingent upon political developments than it has been since the HRA’s enactment.

A further impetus for exploring the offerings and prospects of common law constitutional rights that has come to the fore in the intervening period is the growing backlash against human rights at the international level.²⁵ Enforcement of international human rights judgments remains problematic both as a matter of political will and through the invocation in some states of national law as a justification for failure to implement. Hence the most recent annual report of the Council of Europe Committee of Ministers emphasises ‘persistent shortcomings in the effective national implementation of the Convention’ and the need to reaffirm the ‘unconditional character of the obligation to fully execute the Court’s judgments … against the temptation to put forward domestic or international obstacles’.²⁶ Meanwhile, the Council of Europe Commissioner for Human Rights also highlights the problems of non-implementation (more than 7,000 judgments were awaiting full implementation at the end of 2017), a tendency for states to ‘cherry-pick’ judgments depending on their acceptance by political authorities, and the use of political rhetoric that delegitimises the Court.²⁷ The rise of far right populist parties and politicians across Europe (and elsewhere) also suggests that we should be cautious about the resilience of European (and other international) human rights instruments in what may turn out to be a post-European framework. Indeed, in the midst of the political and legal uncertainty that the UK now faces, it is imperative that we take a realistic look at what the common law would or could offer in the event that reliance can no longer be placed upon the protections afforded by international law under the post-war settlement.

If we turn to consider common law constitutional rights it is evident that despite renewed academic and judicial interest we have limited insight into what rights we have, how they work and what they offer. Common law constitutional rights tend to be considered as a species focusing upon their interface with parliamentary sovereignty and their role in administrative law,²⁸ or as individual rights in isolation, for example the common law constitutional right to freedom of expression or access to the courts. It is however, crucial to any discourse about common law constitutional rights that we seek to develop a clear sense of which rights exist, what they consist of, what can be done with such rights, how such rights come into existence, their similarities and differences and how they relate to one another. Although one scholar suggests that instead of considering ‘the potentially differing level of protection offered to different rights … it is arguably more useful to focus instead on the systemic feature which is the test that the courts apply in relation to interferences with the right at issue’, this is premised upon his determination that ‘common law rights and HRA rights alike are protected through judicial reliance on the proportionality inquiry (or a rationality inquiry which amounts in substance to the same test)’,²⁹ which he asserts ‘is no less rigorous at common law than it is under the HRA’.³⁰ The reality, however, is somewhat more nuanced than this. First, because in order to know whether we apply proportionality analysis we need to know whether, to begin with, a relevant right is applicable. Second, not all rights are subject to proportionality analysis. Third, it is questionable whether domestic proportionality analysis is as rigorous in domestic law as it is in Strasbourg jurisprudence, as indicated by the fact that the Strasbourg Court continues to find violations of the Convention in cases where UK courts have deemed interferences to be proportionate. Fourth, it is necessary to bear in mind that how and to what extent rights are protected vary not only across rights and frameworks but within individual rights. Common law constitutional rights are thus not a homogenous species that can be simply considered en masse.

We thus need both an overarching study of the role of common law constitutional rights at a conceptual level, as well as a detailed and comparative analysis of the content of individual rights. Unfortunately, as Tugendhat J acknowledged in AKJ, these rights are not easy to identify because they have not been codified and because for a long period fundamental rights were eclipsed by philosophical ideas that were inconsistent with natural rights and by the concept of absolute parliamentary sovereignty.³¹ He noted that a ‘further complication for lawyers in presenting cases based on the fundamental rights recognised by the common law is that the names of the torts by which fundamental rights are protected under the common law bear little relationship to the rights themselves’.³² All of these difficulties have been encountered in putting together this book. Although the first part of the book offers detailed analysis of the content and role of individual common law constitutional rights in judicial decision-making, the scope of the book evidently meant that choices had to be made as to which rights to include and how to approach such rights. One option would have been to seek to work through the full catalogue of ECHR rights and look to see whether they are replicated in the common law. Another option would have been to seek to exhaustively catalogue the rights that exist in the common law and then compare those rights to the ECHR. In fact, we elected to use something of a hybrid model in this book, clustering rights thematically and examining the role of the common law and the ECHR vis-à-vis those values and interests. Inevitably this means that the scope of the book is not comprehensive and that there is further work to be done in this vein. We hope, however, that this book will stimulate further discourse within both the academic and judicial community, and we offer the book in the hope that, while it does not amount to an exhaustive evaluation of the whole rights framework, it will provide insight into the nature of common law constitutional rights and the values that they seek to protect.

II.Themes

It will be apparent from what has already been said that an underlying premise of this book is that the issues raised by the subject of common law constitutional rights are many and cross-cutting. Correspondingly, a rich variety of themes arise from and are explored in the contributions to this volume. Inevitably, such themes can be extracted and understood in different ways, and readers will form their own ...

Table of contents

• Cover
• Title Page
• Foreword
• Contents
• List of Contributors
• 1. The Nature and Role of Common Law Constitutional Rights
• PART I: THE CONTENT OF COMMON LAW CONSTITUTIONAL RIGHTS
• PART II: THE ROLE AND POTENTIAL OF COMMON LAW CONSTITUTIONAL RIGHTS
• Index
• Copyright Page