By Mark Elliott
Professor of Public Law, University of Cambridge
In the consultation paper published by the UK Government following the Independent Human Rights Act Review (IHRAR), the phrase ‘common law’ makes no fewer than 55 appearances. Among other things, the Government suggests that we should ‘make sure our common law traditions and Parliamentary sovereignty are respected’, ‘empower domestic courts to apply human rights in the UK context, taking into account our common law traditions and judicial practice amongst other common law nations’ and enable the proposed ‘Modern Bill of Rights’ would allow the rights set out in the European Convention on Human Rights (ECHR) to ‘be interpreted in the UK context, with respect for our unique common law traditions and history’.
One of the overall messages to emerge from the consultation paper is that while the UK should remain a party to the ECHR, greater emphasis should be placed at the national level — including by UK courts — on domestic sources of human rights, including the common law.
While, as Lord Carnwath recently noted, there are ‘serious mismatches’ between the IHRAR report and the Government’s consultation paper — ‘[t]hey are almost like ships that pass in the night’ — the former, like the latter, does talk up the potential role of the common law. In particular, the IHRAR recommended amending the Human Rights Act 1998 (HRA) to ‘place on a statutory footing the approach developed by the Supreme Court that UK statute and common law/case law is the first port of call before, if proceeding to interpret a Convention right, [the] case law [of the European Court of Human Rights (ECtHR)] is taken into account’. The IHRAR report went on to say that: ‘A greater role for the common law has obvious attractions in countering a lack of ownership of rights, just as it could equally counter the notion that the HRA is some alien imposition on UK law.’
Comparing the common law and the HRA/ECHR regimes
This raises some important questions. How exactly do rights recognised at common law and those set out in the ECHR (and given effect by the HRA) relate to one another at present? How would this change if the proposals contained in the consultation were adopted? And, more fundamentally, if human rights are recognised and protected by both common law and the HRA/ECHR, do we actually need both of those systems? If the latter were to fall away entirely, would we be worse off in human rights terms or could the common law simply step in and fill the gap?
The common law and the HRA/ECHR currently sit alongside one another as distinct, overlapping and complementary systems for protecting human rights. Some rights are acknowledged both at common law and by the ECHR, but it is fair to say that the ECHR sets out a substantially broader range of rights than the common law has (so far) recognised. As well as thinking about what rights are recognised by each system, it is also important to consider how rights are protected. The HRA offers a number of forms of protection: it requires legislation, as far as possible, to be interpreted consistently with the ECHR; it allows courts to issue declarations of incompatibility when consistent interpretation proves impossible; and it generally requires public authorities to respect Convention rights.
The common law, in some respects at least, does not go as far. Declarations of incompatibility are not available (or at least have never been issued) at common law. And while there have been occasions on which courts have striven hard to interpret legislation compatibly with common law rights, they have tended to do so in relation only to a narrow core of such rights. A further important difference between the common law and the HRA/ECHR systems is that the latter engages the UK’s obligations under international law.
At the end of the day, the UK is required under international law to respect the rights set out in the ECHR, meaning that Parliament — if it is to avoid placing the UK in breach of its international obligations — must legislate compatibly with Convention rights (and, by the same token, must amend legislation that is found to breach those rights). In contrast, the common law does not — unless we are willing to go as far as to question the orthodox view that Parliament is sovereign — place equivalent limits on what Parliament can do.
The proposed reforms
All of this suggests that while the common law can, and does, offer protection to human rights, it would be an oversimplification to say that the common law could straightforwardly substitute for the HRA/ECHR. If the latter were to disappear, the common law would continue to protect rights, but without the HRA/ECHR component, the overall system for protecting rights in the UK — which presently comprises both the common law and the HRA/ECHR — would be different and, in some senses, weaker.
Against this background, what should we make of the reform proposals — and, in particular, of the emphasis they place on the common law? It is important to note that the Government is not suggesting that the UK should cease to be a party to the ECHR or that Convention rights should no longer be enforceable in UK courts. This means that we do not, at least at present, need to contemplate the potential effects of a ‘scorched earth’ policy that would entirely remove the ECHR from the domestic legal landscape, leaving us wholly reliant on the common law. At the same time, however, we should not be complacent about the possible implications of the changes that the Government appears to have in mind. Among other things, it is proposed:
- that UK courts should look first to the common law and domestic precedent;
- that less weight should be attached to the case law of the ECtHR;
- that the supremacy of the UK Supreme Court (as distinct from the ECtHR) should be asserted in statute;
- that it should be made more difficult to bring claims under the new Bill of Rights by requiring prospective litigants to obtain the court’s permission;
- that the judicial duty to interpret legislation compatibly with Convention right should be removed or significantly weakened;
- that domestic courts might be required to apply certain Convention rights in a way that may not be consistent with how they would be applied by the ECtHR.
The potential combined effect of these proposals is that there may be more — perhaps many more — occasions on which the ‘Modern Bill of Rights’ protects rights to a lesser extent than the HRA. This, in turn, would expand the range of situations in which individuals might wish, or need, to look to the common law, to see whether it could step in and fill the gap.
The extent to which the common law could do so is unclear: the courts have emphasised on a number of occasions that the HRA did not replace the common law, which has remained in place through the HRA era; indeed, it may (and in some instances clearly has) developed under the HRA’s influence, absorbing at least something of the rights and protective techniques contained in the ECHR. It would be naïve, however, to assume that the common law could simply fill any gap that HRA reform might create.
The political dimension
It is worth concluding by noting that there is a political, as well as a legal, dimension to this. In many respects, the tenor of the consultation paper is that human rights are good but that domestic human rights are better — hence the frequent veneration of the ‘common law’ in the paper. The political undercurrents that shape this stance are hardly difficult to fathom. But this framing of the issue does place some important questions in sharp relief. Would the Government really be relaxed — pleased, even — if the courts were to respond to the hollowing out of ECHR-based human rights legislation with a muscular assertion of common law rights?
Is the true objection to the supposed ‘foreignness’ of the HRA/ECHR regime — or is the concern rooted in the notion that it is somehow ‘undemocratic’ for ‘unelected judges’ to uphold fundamental rights in ways that limit the room for manoeuvred enjoyed by the elected branches of the constitution? There are clear indications in the consultation paper that the latter is at least an important part of the Government’s underlying thinking: the Justice Secretary, for instance, concludes his foreword to the paper by underlining the need, as he sees it, to ‘curtail abuses of the system’ and ‘shore up the sovereignty of elected law-makers in Parliament’.
If, therefore, the proposed ‘Modern British Bill of Rights’ turns out to be a watered-down version of the HRA, two consequences might follow. First, it may test the courts’ commitment to the common law as a source of human rights protection by affording greater opportunities to invoke the common law to fill newly created ‘gaps’ in the statutory human rights regime. (This will be a particular issue if the new Bill of Rights contains no generally applicable judicial obligation to interpret legislation compatibly with Convention rights: will the courts say that doesn’t matter because the common law principle of legality entitles them to do something similar?) Second, to the extent that the courts take such opportunities, the Government’s willingness to accept that the common law to operate in such a way will in turn be tested — thereby telling us whether the rhetorical commitments to the common law with which the consultation paper is littered are anything more than warm words.