Common Law Constitutionalism & Human Rights

The Human Rights Act 1998 is not the only way of protecting rights. Common law provides
another mechanism of doing so and the point of this post is highlight how the common law does
and has done in the past.
The starting point in our domestic law is that every citizen has a right to do what he likes,
unless restrained by the common law or by statute. AG v Guardian Newspapers (No 2) [1990] 1
AC 109, per Lord Donaldson.
Examples of Rights protection under common law:
1. Entick v Carrington (1765) 19 St Tr 1030

A warrant issued by the secretary of state to enter and search the claimant's premises and
seize the property was deemed illegal. The executive can do nothing without legal authority
thus protecting the citizen's rights against the state.
2. Duncan v Jones [1936]

The appellant was about to make a public address in a situation in which the year before a
disturbance had been incited by her speaking. A policeman believed reasonably that a breach
of the peace would occur if the meeting was held, and ordered the appellant not to hold the
meeting. The appellant however persisted in trying to hold the meeting and obstructed the
police ofcer in his attempt to prevent her from doing so. Neither the appellant nor anyone
present, committed, incited or provoked a breach of the peace, but the appellant was held to
have wilfully obstructed the ofcer in the execution of his duty. Held: The fact that the ofcer
reasonably apprehended a breach of the peace was a justication for the nding that he was
acting in the execution of his duty. The police may prevent a demonstration on the public
highway where there was any fear of a breach of the peace.

Lord Hewart CJ: "English law does not recognize any special right of public meeting for
political or other purposes.

This is an example of the types of rights that are available under common law
3. Liversidge v Anderson [1942] AC 2306

The HL said they stand between the citizen and any attempt encroachments on his liberty.
They particularly ensure that coercive action is justied by law. But in times of emergence,
arbitrary and wide subjective discretionary powers are permitted

Perhaps showing the limits to common law protection

4. Malone v Metropolitan Police Commissioner (No. 2) [1979] ALL ER 620 Sir Robert Megarry
VC:

Apart from certain limited statutory provisions, there was nothing to make governmental
telephone tapping illegal; and the statutory provisions of themselves assume that such tapping
is not in other respects illegal. That being so, there is no general right to immunity from such
tapping. England, it may be said, is not a country where everything is forbidden except what is
expressly permitted: it is a country where everything is permitted except what is expressly
forbidden.

This was then taken to the ECHR in Malone v United Kingdom (1985) 7 EHRR 14

The Court unanimously held that there had been violation of Mr. James Malone's right to
respect for his private life and his correspondence, as guaranteed by Article 8 of the
European Convention on Human Rights1. The Court further considered, by sixteen votes to
two, that it was unnecessary in the circumstances to examine Mr. Malone's complaint under
Article 13 of the Convention (right to an effective remedy before a national authority).

Showing the difference between human rights protection and common law protection.
5. Derbyshire County Council v Times Newspapers Ltd and others - House of Lords 1993

HL rejected an appeal from government to sue under libel because of the common law right
to freedom of speech and criticise government.
6. R. v Secretary of State for the Home Department ex parte Brind 1991

There was a presumption that in statutory interpretation, parliament didn't intend to

legislation against ECHR despite parliament not having incorporated ECHR yet. They
suggested that the Wednesbury test could be lowered where fundamental rights are
concerned.

A denitive answer to the debate was laid down in 1947 by the House of Lords in Associated
Provincial Picture Houses v Wednesbury Coroporation. Lord Greene MR ruled that the exercise of
executive discretion could be invalidated if the decision was so unreasonable that no
reasonable body could reach it

The strictness of Lord Greenes Wednesbury test has been eroded and executive action is
being routinely overturned based on the merits of cases, especially when decisions are in
deance of moral standards. Moreover, both before and since Brind, several decisions have
included reasoning that seems to be analogous to the proportionality doctrine.
7. This was followed in R v Ministry of Defence ex parte Smith and others [1995]

Whereby a ban on homosexuality in army was considered. The government argued this was a
merits based issue and so strict test of Wednesbury should apply but they said no where
fundamental rights are at stake they can apply a lower threshold.

The court accepted that "[t]he more substantial the interference with human rights, the more
the court will require by way of justication before it is satised that the decision is
reasonable". This is as long as the decision remains within the range of responses open to a
reasonable decision-make

Lord Justice Laws in an article in 1993 set out how common law should protect fundamental
rights without convention being put in domestic law and it appears and this article was put into
practice, principle of legality, the idea that - there can be presumption parliament didn't intend
to legislate against common law rights. Cases show the judiciary accepting this.
8. R v Lord Chancellor (ex Parte Witham) 1994

Laws held power of Lord Chancellor to prescribe court fees was to deny someone the right to
access courts. He says you cant restrict access to courts because parliament would have implied
not contrary to common law rights

9. R v Secretary of State for the Home Department, Ex parte Doody [1994] ] and R v Secretary
of State for the Home Department, Ex parte Leech 1993,

Both cases where judges sought to use principle of legality to protect rights to procedural
fairness and rights to access and right to a lawyer in Leech.
10. R v Secretary of State ex parte Pierson [1998] AC 539, 591.

Lord Steyn: Unless there is the clearest provision to the contrary, Parliament must be
presumed not to legislate contrary to the rule of law. And the rule of law enforces
minimum standards of fairness, both substantive and procedural.

Despite not having the language of rights, it is about access to justice, about home
secretarys right to change sentence retrospectively, similar to art 6, Common law
trying to protect right to fair trial
After HRA 1998
1. R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115

Lord Hoffman: The principle of legality means that Parliament must squarely confront
what it is doing and accept the political cost. Fundamental rights cannot be
overridden by general or ambiguous words. This is because there is too great a risk
that the full implications of their unqualied meaning may have passed unnoticed in
the democratic process. In the absence of express language or necessary implication
to the contrary, the courts therefore presume that even the most general words
were intended to be subject to the basic rights of the individual. In this way the
courts of the United Kingdom, though acknowledging the sovereignty of Parliament,
apply principles of constitutionality little different from those which exist in countries
where the power of the legislature is expressly limited by a constitutional document.
2. Her Majesty's Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 2;

Lord Hope: If the rule of law is to mean anything, decisions as to what is necessary or
expedient in this context cannot be left to the uncontrolled judgment of the
executive...Conferring an unlimited discretion on the executive as to how to make
those resolutions, which it has a hand in making, are to be implemented seem to me
to be wholly unacceptable. It conicts with the basic rules that lie at the heart of our
democracy.

Lord Hope: fundamental rights cannot be overridden by general or ambiguous words.

The absence of any indication that Parliament had the imposition of restrictions on
the freedom of individuals in mind when the provisions of the 1946 Act were being
debated makes it impossible to say that it squarely confronted those effects and was
willing to accept the political cost when that measure was enacted. In my opinion the
[Terrorism Order 2006] is ultra vires section 1(1) of the 1946 [United Nations] Act
and...must be quashed.

Fenwick, Civil Liberties and Human Rights Chp 3

Bill of Rights are adopted because they are believe to be the only way to protect rights,
Dworkin for instance argues under such a bill the government is not free to treat liberty as
a commodity of convince or ignore rights, they have a moral duty towards.

Yet in the UK rights seem to have been protected by common law.

Common law rights however are vulnerable to parliamentary sovereignty which means
parliament can legislate in an area of fundamental rights, restricting or even eradicating
them, judiciary can also invade the rights. Furthermore, conservative government of
1979-1997 fuelled this distrust in common law protection with invasions of civil liberties.

Pre-HRA, the judiciary did not seem to be united around a clear concept of their role in
relation to rights even though some cases such as Entick suggest they recognised they were
there to protect some rights.

Even in an area which it was clear they had to protect rights, namely judicial review, the
courts seemed to have lacked the determination to ensure greater protection, they had
stopped short of introducing a fully proportional test.

Proportionality is a requirement that a decision is proportionate to the aim that it seeks to

achieve. E.g. an order to forbid a protest march on the grounds of public safety should not
be made if there is an alternative way of protecting public safety, e.g. by assigning an
alternative route for the march. Proportionality exists as a ground for setting aside
administrative decisions in most continental legal systems and is recognised in England in
cases where issues of EC law and ECHR rights are involved. However, it is not as yet a
separate ground of judicial review, although Lord Diplock has alluded to the possibility of it
being recognised as such in the future. At present, lack of proportionality may be used as an
argument for a decision being irrational

This may be due that judiciary had no textual anchor for their decisions. Dawn Oliver
points out that what has been termed the ethical aimlessness of common law, its lack of
clear direction, means there are no guiding principles emerging from common law
protection.

Fenwick argues that the introduction of the Convention has increased unity among
judiciary, although there are still difference in weights to be given to rights and freedom,
they are certain about what to take into account.

In essence, having the HRA the structure of judicial reasoning is changing and becoming
more clear, and judges also have a clear mandate to develop this reasoning on.

She ponders the possibility of introducing a British bill of rights arguing it would deal with
a two-fold problem of the HRA, 1. that it was not sold to the public in 1998 and 2. it is
seen as a foreign European implant plagued by over-regulation. She says this would work
so long as it had at least the rights that are currently present under HRA 1998.