Recently, senior judges have been championing the role of the common law as ‘the guarantor of human rights’ [i],criticising claimants in two separate cases for bringing their cases under the Human Rights Act 1998 for breaches of their rights under the European Convention on Human Rights (ECHR), rather than under the common law. In speeches outside court following Supreme Court decisions, Osborn v The Parole Board  UKSC 61 and Kennedy v The Charity Commission  UKSC 20, both Lord Reed and Lord Mance emphasised the importance of the common law as a primary source of fundamental rights and values, and described it as ‘the origin and promoter of individual rights’[ii].
This resurgence in emphasis in the common law may well be influenced by Government proposals to repeal the Human Rights Act. Judges appear to be setting out the potential approach of the courts in a future without that statute. The Supreme Court’s clear message to claimants is to use the common law as a starting point in any dispute, and only to use the European Convention, by way of the Human Rights Act (HRA), where the common law is lacking.
The problem with the promotion of the common law as the first and foremost legal protection for human rights is that it overlooks the significant limitations of the common law to guarantee that protection. This is particularly dangerous at a time when the future of rights protection in the UK is in the balance. The idea that the common law can offer the same level of protection as we currently have from the European Convention has been co-opted by advocates of repeal of the HRA. Speaking to the Joint Committee on Human Rights in July this year, Justice Secretary Michael Gove argued that the UK had ‘human rights before the Human Rights Act’. This idea that the ECHR simply reflects the liberties protected at the common law suggests that the HRA can be repealed without impact, but disguises the weaknesses in the protection that the common law can offer.
One such weakness is the lack of clarity on which rights are protected. By its nature the common law is not codified and there is no written list of principles comparable to the European Convention. Blackstone’s Introduction to the Study of the Law and the Constitution lists three primary common law rights: personal security, personal liberty and private property, and auxiliary rights necessary to secure them, such as access to justice. Rights to a fair trial, right to open justice and to freedom of speech are recognised both in the common law and in the Convention. But as Lady Hale noted in a speech last year, any list of common law rights is ‘inherently contestable’[iii].
In claims against the police, we frequently use common law causes of action which broadly secure or arise from the right to personal liberty. For example, in cases of unlawful arrest or arbitrary detention, we can bring a claim in false imprisonment, which requires the detaining authority to prove lawful justification for the loss of liberty. Claims in misfeasance in a public office and malicious prosecution are also common law actions allowing a person who has suffered damage as a result of a wrongful act by a public authority to seek redress. However, these common law actions are limited in important respects. With regards to false imprisonment, it is not possible to challenge the lawfulness of a detention where a person has been remanded in custody by a court. This is the case even where the police and prosecuting authorities have failed to make the court aware of critical information which undermined the basis for the detention. It is also not possible to challenge many police failings at common law which involve third parties, even where there is evidence that the police have been negligent, for example by failing to investigate a serious crime or to protect an individual from a crime and even where that failure has resulted in death or serious injury. In these kinds of cases, we have to rely on the Human Rights Act to obtain justice for our clients.
The common law protection simply isn’t as extensive as that guaranteed by the ECHR. Crucially, whilst the common law offers some redress for persons whose fundamental rights have been breached where it is the state which is directly responsible for the interference, the ECHR offers broader protection and puts an onus on the state to be proactive in protecting people’s fundamental rights from interference both by the state and third parties.. In particular, the ECHR alone offers redress to victims of crime who have been failed by state investigations and who the state has totally failed to protect from harm.
There are only weak powers at common law to review and to challenge the decisions of public authorities and the legislature. Traditional grounds for challenging the decisions of public authorities by way of judicial review are limited: as long as the correct procedure was followed, and the decision doesn’t meet the high threshold of irrationality, the court will defer to the decision maker. Where the judicial review claim alleges a breach of a Convention right, however, the court can also consider whether the decision has a legitimate aim and the proportionality of its impact. This significantly extends the power of review where Convention rights are engaged.
Prior to the enactment of the HRA, the court had power to review secondary legislation, on the limited grounds mentioned above, but not Acts of Parliament. Through the HRA, Parliament granted the courts the power to interpret primary legislation to comply with the European Convention, and to issue declarations of incompatibility where this was not possible. The extent to which the court has any power at all under the common law to scrutinise, let alone challenge, primary legislation is debatable and highly controversial. Lord Neuberger mused about whether the court would have a power at common law to override an ‘outrageous’ statute, such as one abolishing the right of judicial review, but gave no firm opinion. It would be extremely surprising for a court to decide in future to ‘override’ an Act of Parliament. The present HRA regime does not permit courts to strike down incompatible legislation, and a declaration of incompatibility has no effect on the lawfulness of the Act in question: it remains good law unless Parliament decides to amend it.
Judges have traditionally been cautious in the development of the common law. The Supreme Court decisions in Kennedy and Osborn recognised common law rights of procedural fairness and open justice, and were therefore primarily concerned with the administration and processes of justice, areas where the court is well placed to determine the boundaries. There would be little controversy in the courts developing the common law in such areas; however it is likely to be more problematic for judges to develop common law rights which are not so closely connected to access to justice. Judicial activism or law-making by the unelected, non-representative judiciary would be a controversial and unexpected consequence of the repeal of the HRA; one that would be roundly condemned by government. In any event the judiciary’s traditional caution would suggest that this is unlikely, and the more probable outcome would be a significant reduction in the extent of rights protection and the ability of ordinary people to challenge excesses of state power through the courts.
[i] Laws LJ, para 27, Commissioner of Police of the Metropolis v DSD and NBV,  EWCA Civ 646
[ii] Lord Neuberger, The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience, Address to Supreme Court of Victoria August 2014
[iii] Lady Hale, UK Constitutionalism on the March, keynote address to the Constitutional and Administrative Law Bar Conference July 2014