THE EMPIRE STRIKES BACK: COMMON LAW RIGHTS AND THE HUMAN RIGHTS ACT

By Richard Clayton QC

Two recent decisions, R(Osborne) v Parole Board and Guardian Newspapers v Westminster Magistrates Court, suggest that common law rights are, again, centre stage.  As the future of the HRA becomes more obscure, recourse to the common law will attract many exponents; and some will, no doubt, argue that using domestic law rights can achieve much the same as the HRA. 

In Osborn the Supreme Court recently considered the circumstances in which fairness required an oral hearing for prisoners seeking parole.  Lord Reed observed:

The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law ….. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law …. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law.

Lord Reed’s approach makes it opportune to reflect on the scope for utilising fundamental common law rights, a development which emerged so powerfully in the 1980s and 1990s.  To some degree that movement was displaced in the English courts by the enactment of HRA and its focus on Convention rights.  However, a number of recent important cases have turned on common law rights.  At the very least, these cases demonstrate that the HRA does not solve all rights cases which are litigated before the courts.  But they may also indicate we should give a greater prominence to common law rights, now that the future of the HRA appears to be uncertain.  

I shall sketch out the relationship between common law and Convention rights to consider the scope for their further development.  I shall argue that there are some unusual features about Osborn and Guardian; and would therefore express a note of caution about their general effect in domestic jurisprudence.   Problems remain about how we identify common law rights and how common law rights will impact in practice, as a result of their traditional limited status in English law.   In my view, common law rights cannot on current principles present replicate the positive rights created by the HRA; and it is premature to argue that that ‘the force is with us’ in developing common law rights, unless and until some underlying principles are modified.

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