Rights and freedoms guaranteed by common law
In her address to the Constitutional and Administrative Law Bar Association on 12 July 2014 (http://www.supremecourt.uk/docs/speech-140627.pdf ) Lady Hale (Supreme Court justice) balanced the rights bases of human rights jurisprudence with those of the English common law. On a more modest canvas (see https://dbfamilylaw.wordpress.com/2014/09/01/family-laws-shakey-hold-on-the-common-law/ ) I considered the extent to which family lawyers have failed to understand the common law (there in its simplification of the problems they think they are grappling with when it comes to open court trials of family cases).
This article and its successor will seek to draw out the following:
- That the vast majority of the most fundamental rights – which by definition are ‘human’ – and freedoms protected by English law are derived from the common law;
- That much statutory provision which deals with rights is merely a codification of long existing rights: as Lord Cooke puts it in Daly below: ‘Conventions, constitutions, bills of rights and the like respond by recognising rather than creating [rights]’; and
- Certain Convention rights (though not all: it is arguable that Convention jurisprudence has given the common law a new approach to privacy) can only be explained, in English law, by reference to the common law
It is therefore crucial that any judge who is considering a statute appreciates that it may be only a step on a common law line which the statute ‘recognises’. It by no means creates the law. For example a deep rooted common law principle is legal professional privilege (the right to discuss matters in inviolable privacy with a lawyer). This concept has been defined in a number of statutes. Those definitions do not define the subtleties on which privilege is based, and never can do. It is the common law which defines privilege, and it is the judges which refine and re-define it (or not: see R (Prudential plc and anor) v Special Commissioner of Income Tax  UKSC 1).
Common law and the European Convention 1950
Lady Hale’s starting point is to demonstrate the tendency of lawyers to regard Human Rights Act 1998 and articles under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as being the starting point for a consideration of rights issues:
…this [she said at page 4] is to misunderstand the relationship between the Convention and the common law in our domestic law, and to overlook the continued and developing protection offered by the latter.
Critical to this relationship is the passage of Lord Cooke in R v Secretary of State for the Home Department exp Daly  UKHL 26 (http://www.bailii.org/uk/cases/UKHL/2001/26.html)
 First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. [The passage quoted by Lady Hale is italicised.]
In Daly the House of Lords was concerned with the narrow issue of whether a prisoner, whose cell was being examined by prison staff in his absence, was entitled to be present when correspondence covered by legal professional privilege (this term is explained below) was being looked at. His appeal was allowed. Lord Bingham’s short speech was the main basis for the decision:
 I have reached the conclusions [that the appeal should be allowed] on an orthodox application of common law principles…. But the same result is achieved by reliance on the European Convention. Article 8(1) [right to respect for private and family life] gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly’s exercise of his right under article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result….
Common law: not an ‘ossuary’
The question of the relationship of common law to the European Convention 1950 arose in Kennedy v The Charity Commission  UKSC 20 (http://www.bailii.org/uk/cases/UKSC/2014/20.html). In Kennedy the Supreme Court was considering a claim by a journalist to see confidential papers under Freedom of Information Act 2000. The appeal was dismissed (the journalist was not allowed to see the papers); but the court considered very fully the rights in play. Anyone reading the judgements will find that of Lord Toulson the most easily assimilable (an ‘ossuary’ is somewhere to keep bones), in which he says:
 [My analysis] is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary. [The passage quoted by Lady Hale is italicised.]
This article (next instalment) will test the three points which set out at the beginning by reference to common law and European Convention 1950 principles and specifically in relation to Art 6.1 (right to a fair trial). Fundamental rights and freedoms – ‘human’ rights, I say, is a tautology; and the common law and European Convention 1950 are also designed to protect freedoms – of legal professional privilege, the rule against bias, audi alterem partem (hear the other side) and ‘equality of arms’ will be touched upon.
Fundamental rights: dismantling rights and freedoms
Before looking at rights and the common law it is necessary to recall – for any politician who wishes to dismantle the Human Rights Act 1998 – that the rights and freedoms which the European Convention 1950 protects, are mostly those protected by the common law. Repeal of the Human Rights Act 1998 therefore will do very little. To get rid of most of what the Human Rights Act 1998 stands for to a Daily Mail reader a politician must legislate to undermine fundamental common law rights. And that must be done by express statutory provision, line by bitter line.
Thus, Parliament can legislate in a way which is contrary to common law rights; but if it does so (Lady Hale touches on this point in her speech at page 3) it must do so clearly and in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien  UKHL 33 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners)
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But 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 unqualified 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.
Lord Hoffman returned to this point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd  UKHL 21,  1 AC 563 (a case concerning fundamental rights and legal professional privilege)
 … the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication … [ex p Simms (above)] contains some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.
The European Convention 1950 was mostly drafted by English common lawyers, from their own common law experience. Get rid of the Human Rights Act 1998 and you find – hardly the next skin on the onion, but the image will do – the common law. It is a carapace which protects all the rights which in its different way also does the Convention; and life in relation to rights and freedoms will go on much as before subject to any assault upon them which any Government seeks to inflict.