Something in common?
Angela Patrick introduces a new series of articles on the tricky issue of using the common law for the protection of human rights.
The hard-edged problems inherent in the use and development of the common law are magnified when applied to the protection of fundamental rights.
As the Human Rights Act 1998 (HRA) has weathered bouts of political attack of increasing severity, the common law’s utility as a tool for the protection of individual rights has become a notable subject of judicial enthusiasm. As manifestos are hastily drafted for the looming general election, the future of the Act may yet attract political attention. In a short series of articles, Legal Action has invited me to explore the utility of the common law and its limitations for lawyers working on the front line to protect human rights and civil liberties.
Judicial enthusiasm and encouragement
Lord Reed in Osborn v Parole Board [2013] UKSC 61 first stressed that the HRA ‘does not … supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court’ (para 57). Lord Toulson in Kennedy v Charity Commission [2014] UKSC 20 went further (at para 133), regretting a ‘baleful and unnecessary tendency to overlook the common law’. He explained: ‘[I]t was not the purpose of the Human Rights Act that the common law should become an ossuary’ (para 133; see also R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 at para 88). Lord Reed, in A v BBC [2014] UKSC 25, again expressed these sentiments, but stressed the capacity of the common law to develop beyond the rights protected by the European Convention on Human Rights (ECHR) (para 57).
Speaking extra-judicially, our senior judges have displayed similar criticism of narrowing legal creativity among human rights lawyers. In 2016, Lord Neuberger implied this to be as much a responsibility of judges as those making the arguments put before them: ‘We were all so excited about the new toy that we left the old one in the cupboard’ (Has the identity of the English common law been eroded by EU laws and the European Convention on Human Rights?, speech given at the Faculty of Law, National University of Singapore, 18 August 2016).
Lord Mance, in Kennedy, would put the common law first in the advocate’s tool box, to be preferred, where possible, over the HRA: ‘[T]he 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’ (para 46). This seeming hierarchy apparently neglects the wholly domesticated nature of the statutory rights under the ECHR recognised as part of our domestic legal framework by their incorporation in the HRA by parliament; but it is perhaps a brave lawyer that ignores such learned and persistent judicial direction from a number of prominent members of our judiciary.
The common law and the HRA
The role of the common law in the protection of individual rights is, of course, far from new. Some of the earliest recognitions of human rights protection in the law may not have borne such a label, but modern human rights standards have roots grown in centuries of principle drawn from venerable jurisprudence. From habeas corpus to misfeasance, the common law tools that protect the individual against the powers of the state are far from obsolete. To take one example, consider Entick v Carrington [1765] EWHC KB J98. Without foundation in law, the agents of the state – in this case, breaking and entering into someone’s home to look for evidence of sedition – could not trespass against our inherent liberty. That stands good today, and is reflected in both the principles of legality and legal certainty and in the protection afforded to the right to respect for home and correspondence guaranteed by ECHR article 8.
However, the common law as an instrument for the protection of human rights has enjoyed a resurgence as both legal professionals and the judiciary have become more familiar with the full scope of rights-based adjudication. From R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 (decided shortly before the HRA was due to come into force) to Osborn (cited above), that judicial enthusiasm for the common law as an adjudicative tool coextensive with the protection of ECHR rights offered by the HRA has been fuelled by the function played by that Act is unavoidable.
Using the common law
It is trite that the common law principle of legality protects individual rights in a number of wholly familiar ways. Acts of public bodies or officials can be challenged as ultra vires where they conflict with a right recognised in the common law. For example, a blanket-ban on prisoners being interviewed by journalists in their professional capacity was incompatible with the common law right to free expression and beyond the powers conferred on the home secretary by parliament (Simms, cited above). Similarly, Acts of Parliament must be interpreted in a way that respects common law rights unless there is an express – and crystal clear – intention to the contrary (R (Evans) v Attorney General [2015] UKSC 21). Thus in R (Witham) v Lord Chancellor [1998] QB 575, secondary legislation substantially increasing court fees had such a serious impact on an individual’s ability to bring a case that it violated the right of access to courts and was struck down.
However, the practical significance of the principle of legality has increased as the court’s approach to the standard of review in public law – at least in human rights cases – has evolved from reasonableness, through ‘anxious scrutiny’, to a point where the senior judiciary accept that there is little difference between a proportionality assessment required by the HRA and common law review (see Pham v Secretary of State for the Home Department [2015] UKSC 19 at para 118 and Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 at paras 55–61). The political significance of the common law’s rediscovery, resurgence or rebirth is transparent. If the HRA remains under threat, an understanding of the range of legal options for the protection of human rights, and their scope, will be invaluable.
The limits of the common law
However, the limitations of the common law cannot be overlooked. It is important in this analysis, echoing Lady Hale, not to ‘overstate its reach’ (see UK constitutionalism on the march?, keynote address to the Constitutional and Administrative Law Bar Association Conference 2014, 12 July 2014).
That the common law fell short historically, before the introduction of the HRA, is beyond challenge. It famously could not help a group of soldiers dismissed in the 1990s from our armed forces on the grounds of sexuality alone. Notwithstanding a lifetime of commitment and a career’s value in training, our sympathetic House of Lords, pre-introduction of the HRA, could do nothing within our common law or statute to prevent the dismissal of Mr Grady and Ms Smith (see Smith and Grady v UK App Nos 33985/96 and 33986/96, 27 September 1999; (1999) 29 EHRR 493).
Professor Conor Gearty has gone so far as to suggest that the recollection of a civil libertarian common law is based on a ‘fantasy’ that overlooks the ‘partisanship of the common law for property and contract rights’ (see ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ [2015] EHRLR 1, 2–3).
That the common law falls short of the protection offered by the HRA is now equally clear. Consider Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2. Ms Michael called 999 to report that she feared for her life, after her historically abusive partner visited her property and threatened to return and kill her. A claim was brought by her family following her death to challenge the failure of local police authorities to act. The Supreme Court held that while the common law of negligence could give no remedy, the police had a case to answer under the HRA and the right to life, protected by article 2. Whatever we might think about the Supreme Court’s conclusion on negligence – and there was a strong dissent – the case is illustrative of the value of the HRA. The same substantive value lies at the heart of the current litigation brought by the victims of John Worboys, currently before the Supreme Court in Commissioner of Police of the Metropolis v DSD and another (UKSC 2015/0166).
The hard-edged problems inherent in the use and development of the common law remain and are magnified when applied to the protection of fundamental rights. The common law is legally uncertain and nebulous, often ill-defined except by its application. It remains largely inaccessible, except to lawyers. As Lady Hale has cautioned, citing Richard Clayton: ‘Identification of less well-established common law rights is more difficult – any list is “inherently contestable’” (see UK constitutionalism on the march? and Clayton, ‘The empire strikes back: common law rights and the Human Rights Act’ [2015] PL 3).
The ‘constitutional resilience’ of the common law as yet may go no further than the HRA can go. Beyond obiter statements by respected and senior members of the judiciary, there is nothing to contradict the view that common law rights can be constrained by express statements of primary legislation (see, of course, R (Jackson) v Attorney General [2005] UKHL 56 at paras 102–107 and AXA General Insurance Ltd and others v Lord Advocate and others [2011] UKSC 46 at para 50). Without a constitutional crisis of a magnitude as yet unseen, the endurance of the common law remains untested (see Mark Elliott, Beyond the European Convention: human rights and the common law, University of Cambridge Faculty of Law Research Paper No 19/2015, 23 April 2015).
Although some have argued that common law rights are less disruptive of a constitution hinged on parliamentary sovereignty, this seems counterintuitive. For my part, the statutory framing of clear constitutional standards for the protection of rights with clear functions for both parliament and the judiciary (as per the HRA) seems a logical and elegant solution. It balances, on the one hand, the need for constitutional clarity for individuals seeking to protect their rights against administrative and executive overreach and, on the other, the need to respect the constitutional function of the elected legislature. The values of that Act were designed to ensure that human rights were not the sole preserve of the judiciary and the legal profession. Administrative bodies, central government and parliament are required to take responsibility for making rights real through constitutionally crucial commitments to ECHR rights in HRA ss6 (public duty), 10 (remedial orders) and 19 (ministerial certification). While the tripartite nature of these obligations may find strong echoes in the common law, their statutory articulation as express duties has, in my view, added real democratic value in the integration of rights-based analysis in public decision-making.
The right tool, well maintained?
In the next article, I will explore the application of common law rights in the area most closely suited to the institutional competence and constitutional prerogative of the judiciary: access to justice. From procedural fairness to open justice, from limits on the discretion of public decision-makers to barriers on access to the courts, in the realm of justice, the common law and our judiciary should bear the greatest responsibility for the protection of the individual. Against the background of a decade of change in access to justice with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 at its heart, this seems a good place to begin a substantive analysis of the comparative utility of the common law and the HRA for practitioners.
There is good reason to remain unpersuaded that the common law can provide an effective and practical substitute for the constitutional or statutory protection of human rights, including that crucially offered by the HRA. However, the test of any tool must be in its utility to get the job done. A tool well known and used well, no matter how rusty, can serve an important practical purpose. Sometimes a tool simply won’t work or may be ill-suited to the job at hand. On other days and on other jobs, it might work like a dream. We are encouraged to explore the continuing utility of the common law for the protection of constitutional rights; practitioners should oblige by keeping it well-oiled.

About the author(s)

Description: Angela Patrick - author
Angela Patrick is a barrister at Doughty Street Chambers, a member of the Equality and Human Rights Commission panel and sits on the LAG board of...