Common law constitutional rights

Common law constitutional rights occupy the territory between orthodox Diceyan legality and modern rights adjudication under the Human Rights Act 1998. They are not a freestanding bill of rights entrenched against Parliament. Nor are they simply a rhetorical label for whatever liberties survive until Parliament removes them. The modern law is more exacting. Courts identify certain rights, liberties and institutional principles as fundamental; they protect them through strong interpretative presumptions, heightened standards of justification in judicial review, and resistance to executive action unsupported by clear legal authority.

The core examples are familiar: access to the courts, liberty of the person, procedural fairness, legal professional privilege, freedom of expression, open justice, freedom from arbitrary search or detention, and the right of prisoners to communicate confidentially with legal advisers. These rights are ‘common law’ in two related senses. First, they are recognised and elaborated by courts without dependence on a written constitutional text. Secondly, they are protected through common law techniques: interpretation, legality, reasonableness, proportionality, fairness and the insistence that public power must have legal authority.

For Part IA, the topic is best understood as a bridge between Weeks 2 to 8. Parliamentary sovereignty remains the background rule: a clear Act of Parliament may curtail common law rights. But the principle of legality means that Parliament must confront what it is doing in express or necessarily implied language. The courts will not infer an intention to abrogate fundamental rights from broad, general or ambiguous words. That is the constitutional significance of R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115. It preserves legislative supremacy while changing the practical politics of rights-removal.

The executive is in a different position. Ministers, police officers, prison governors and public bodies possess only those powers conferred by law. If an official invades property, restricts liberty, denies access to a court, frustrates legal advice, or closes a hearing without authority and justification, the common law may supply the ground of challenge. Entick v Carrington (1765) 19 St Tr 1029 remains the emblematic proposition: the executive cannot point to state necessity or administrative convenience as a substitute for legal authority.

The contemporary question is not whether common law rights exist. They plainly do. The harder questions are their basis, intensity and limits. Are they implied political choices attributable to Parliament? Are they moral principles embedded in legality itself? Are they constitutionally superior norms recognised by the courts? Are they becoming a parallel rights code beside the Human Rights Act? Cambridge examiners expect precision on these questions. A strong answer distinguishes rights as reasons from rights as trumps; distinguishes statutory interpretation from review of executive discretion; and explains how common law constitutionalism can be both orthodox and potentially radical.

The English tradition did not develop through a single codified rights instrument. Instead, it produced a layered constitutional inheritance: medieval guarantees of lawful judgment and access to justice; seventeenth-century limits on prerogative power; eighteenth-century protection of property and personal liberty; nineteenth-century Diceyan legality; and twentieth- and twenty-first-century administrative law and human rights adjudication. This uneven history matters because common law rights are often justified by continuity. The claim is not that the common law has always been liberal or egalitarian. It is that legal authority, liberty and adjudication have long been connected in the constitutional imagination.

Magna Carta 1297, especially chapter 29, supplies a symbolic starting point rather than a complete doctrinal foundation. Its language of lawful judgment and denial or delay of justice is invoked in modern cases concerning access to courts and legality. The Petition of Right 1628, Habeas Corpus legislation, and the Bill of Rights 1688 reflect the struggle to confine executive government within law. Article 9 of the Bill of Rights also reminds us that rights and institutional principles may operate in different directions: parliamentary privilege protects representative deliberation, but also limits judicial inquiry.

The decisive common law episode is the judicial reaction to prerogative and state necessity. In Entick v Carrington, Lord Camden rejected a warrant issued by the Secretary of State authorising seizure of papers. The case is not merely about trespass. It states a constitutional method: if coercive executive power exists, it must be found in law. General claims of public interest are not enough. This proposition later became central to judicial review of the executive and to the rule of law account associated with Dicey.

Dicey’s account of rights was famously common law-centred. He contrasted the English constitution with systems founded on formal declarations of rights, contending that liberties were secured by ordinary legal remedies in ordinary courts. The attraction of this account lies in its concreteness: unlawful detention yields habeas corpus; trespass yields damages; ultra vires action yields nullity. Its weakness is equally clear. A purely residual account of liberty protects only what Parliament and the executive have not lawfully removed. It says little about equality, positive obligations, socio-economic rights, or modern administrative discretion.

The post-war period intensified these difficulties. The welfare state, immigration control, prisons, national security and modern policing brought far greater discretionary power. At the same time, the European Convention on Human Rights supplied a structured catalogue of civil and political rights. Before the Human Rights Act, Convention rights could not generally be enforced directly in domestic courts, but they influenced interpretation and the development of common law principles. Cases such as Leech and Witham therefore acquired special significance: they protected fundamental rights before the HRA made Convention rights directly justiciable.

After the HRA, common law rights did not disappear. Section 11 confirms that reliance on Convention rights does not restrict other rights or freedoms under domestic law. More importantly, the courts have sometimes insisted that the common law has its own constitutional value. Osborn, Kennedy and UNISON show a renewed willingness to treat access to justice, fair process and legality as indigenous principles rather than merely Convention imports. That revival should not be overstated. It remains bounded by statute and by institutional caution. But it means that the modern student must avoid the simplistic view that rights protection in the United Kingdom is either parliamentary sovereignty or the HRA. The common law is an autonomous source of constitutional discipline.

1. The residual liberty principle. The starting point is that private persons may do anything not prohibited by law, whereas public authorities must identify legal authority for their acts. That distinction is elementary but powerful. It explains why constitutional rights at common law often appear in negative form: freedom from unlawful detention, freedom from unauthorised search, freedom from interference with correspondence, and freedom from executive penalties not authorised by statute or prerogative. Entick v Carrington is the canonical authority. The citizen need not show permission; the official must show power.

1. Fundamental rights and the principle of legality. The leading modern technique is the principle of legality. Courts presume that Parliament does not intend to interfere with fundamental rights unless it uses clear words or produces necessary implication. The presumption is not a denial of sovereignty. It is a rule about how sovereign legislation is read. Its constitutional effect is substantial: it forces rights-abrogation into the open and prevents broad administrative language from becoming a licence for rights-infringement. In Simms, a general statutory power to regulate prisons was not read as authorising a blanket restriction on prisoners’ oral interviews with journalists where that restriction impeded the possible challenge of convictions.

The principle of legality must be kept distinct from section 3 HRA interpretation. Section 3 requires legislation, so far as possible, to be read compatibly with Convention rights. The principle of legality operates independently of the Convention and protects common law fundamental rights. It is also conceptually older and less text-dependent. It asks whether Parliament has clearly authorised what would otherwise be an interference with a constitutional right. It does not require courts to adopt strained interpretations of statutory language to achieve compatibility. Its strength lies in constitutional presumption, not statutory mandate.

1. Access to courts as a constitutional right. The strongest modern line of authority concerns access to justice. Witham held that court fees could not be set at a level which effectively prevented access to the courts unless Parliament had clearly authorised such exclusion. UNISON constitutionalised the point at Supreme Court level: tribunal fees were unlawful because they impeded access to justice and frustrated the operation of employment rights. This right is both individual and systemic. Individuals need courts to vindicate claims; the legal system needs adjudication so that rights are not merely paper promises.

The landmark cases form a coherent story if organised around three questions: what counts as legal authority, how clearly Parliament must speak, and how intensively courts review executive interference with fundamental interests.

Entick v Carrington supplies the foundational account of executive legality. State officers entered Entick’s house and seized papers under a Secretary of State’s warrant. The court held the warrant unlawful. The point is not confined to search powers. The executive cannot create coercive powers by invoking necessity, security or reason of state. Legal authority must be found in statute or recognised prerogative. Entick therefore anchors the difference between citizen liberty and official power.

Leech and Witham develop the logic of legality in modern administrative settings. In Leech, prison rules allowing interference with correspondence were not construed as permitting routine examination of legally privileged communications. The right to confidential legal advice was too fundamental to be removed by general language. In Witham, delegated legislation imposing court fees could not lawfully deny practical access to courts. The Lord Chancellor’s fee-making power did not authorise the destruction of the very right through which legal rights are vindicated.

Simms is the central authority for the principle of legality. Prisoners wished to speak to journalists to investigate possible miscarriages of justice. A policy restricting oral interviews was defended under general statutory powers relating to prison management. The House of Lords held that fundamental rights cannot be overridden by general or ambiguous words. Parliament may legislate contrary to fundamental rights, but it must do so clearly. The decision is orthodox in form and constitutional in substance.

Daly represents a shift in intensity. The policy requiring prisoners to be absent while officers searched legally privileged material was unlawful. Lord Steyn distinguished proportionality from traditional Wednesbury review and accepted that rights-sensitive decisions may require closer scrutiny. Daly is important because it shows that common law rights are not protected only at the threshold of statutory interpretation. They also affect the standard by which executive justifications are assessed.

Osborn reframes procedural fairness. The Parole Board had refused oral hearings to prisoners. The Supreme Court held that fairness required oral hearings in the circumstances. Lord Reed emphasised that common law fairness has intrinsic value: participation, dignity and legitimacy matter even if the outcome might not change. That point is essential in essays on whether common law rights are merely instrumental.

Kennedy and UNISON confirm the continuing autonomy of common law constitutionalism after the HRA. Kennedy concerned access to information about a Charity Commission inquiry; the judgments stressed open justice, accountability and the domestic common law tradition. UNISON struck down employment tribunal fees because they impeded access to justice. The case is now the leading modern statement that access to courts is inherent in the rule of law and cannot be curtailed by subordinate legislation absent clear statutory authority.

Privacy International brings the story to ouster clauses and the supervisory jurisdiction. The Supreme Court construed a statutory provision narrowly and declined to treat it as excluding review for errors of law by the Investigatory Powers Tribunal. Its importance for this topic lies in its suggestion that access to judicial review is not merely another administrative convenience. It is part of the constitutional architecture through which legal limits on public power are maintained.

See practice questions section below.

See further reading section below.