Common law constitutional rights

Common law constitutional rights occupy a difficult but central place in the first-year study of the citizen and the State. They are not rights in the entrenched, codified sense familiar from the United States Constitution or the German Basic Law. Nor are they merely rhetorical ornaments. They are rights recognised, protected and developed by the courts as part of the common law constitution: access to the courts, liberty of the person, property, legal professional privilege, freedom of expression, open justice, procedural fairness, and the right not to be subject to executive coercion without lawful authority.

The topic must be placed carefully within the sequence of the Durham module. Weeks 1 to 7 established the background: an uncodified constitution, parliamentary sovereignty, constitutional statutes, the rule of law, separation of powers, prerogative power, and devolution. Week 8 considered the Human Rights Act 1998. Week 9 asks a different question: what remains, or what matters independently, where rights are protected at common law rather than under the Convention? The answer is that common law constitutional rights perform at least four functions. First, they supply substantive standards for reviewing executive action. Secondly, they shape statutory interpretation through the principle of legality. Thirdly, they influence remedial and procedural doctrines in judicial review. Fourthly, they give constitutional expression to the rule of law by insisting that coercive public power requires legal justification.

The orthodox starting point is still parliamentary sovereignty. A common law constitutional right does not normally empower a court to strike down an Act of Parliament. If Parliament uses clear language to authorise an interference with a fundamental right, the court will usually give effect to that language. But the word 'usually' conceals the entire modern controversy. In cases such as Simms, Leech, Witham, Daly, Osborn, Kennedy, UNISON and Privacy International, the courts have described certain rights and principles as constitutional. The court will not infer that Parliament intended to abrogate them by general or ambiguous words. It will scrutinise executive interference closely. It will construe statutory powers against a constitutional background. It may refuse to accept that a statutory clause has excluded judicial review unless Parliament has spoken with exceptional clarity.

For examination purposes, avoid two errors. The first is to treat common law rights as a weak duplicate of the Human Rights Act. They pre-date the HRA and continue to operate alongside it; section 11 HRA expressly preserves other rights and claims. The second is to exaggerate them into full judicial supremacy. The best answers hold the tension: common law rights are strong against the executive, interpretively powerful against legislation, and constitutionally controversial at the boundary with Parliament.

The historical development of common law constitutional rights is not linear. It is better understood as a recurring judicial insistence that public power must be justified by law. The classic eighteenth-century authority is Entick v Carrington, where state officials entered and searched the claimant's premises under a warrant issued by a Secretary of State. The court held the search unlawful because no legal source authorised it. Entick is often invoked as the founding expression of the legality principle in its negative form: the citizen may do anything not prohibited by law; the executive may do only what the law permits. That distinction is fundamental to The Individual and the State. It connects the law of tort, public law, and constitutional theory: a trespass by a private individual is not transformed into lawful conduct merely because it is committed by a government officer.

Nineteenth-century Diceyan constitutionalism then gave the common law a distinctive ideological role. Dicey denied that England possessed a special administrative law separate from ordinary law. Public officials were, in principle, subject to the same courts and ordinary legal liabilities as citizens. That picture was never complete, and later administrative law developed specialised remedies and doctrines. Yet the Diceyan legacy remains important: constitutional liberty in the British tradition has often been expressed not as an abstract written guarantee but as the absence of lawful authority for interference. Habeas corpus, false imprisonment, trespass, natural justice, and judicial review all exemplify this form of constitutionalism.

The twentieth century complicated matters. The growth of the administrative state meant that many interferences with liberty, property, speech and association were authorised by statute. The central question therefore shifted from 'is there any legal power?' to 'how should a statutory power be read, and how intensely should its exercise be reviewed?' Courts increasingly treated certain interests as fundamental. In cases concerning prisoners' correspondence, immigration detention, court fees, closed procedures and ouster clauses, they invoked constitutional rights and the rule of law as interpretive controls on public power.

The rise of the European Convention on Human Rights and, later, the Human Rights Act 1998 did not abolish this common law tradition. Before 2000, Convention rights could not be directly enforced domestically, but courts sometimes used them as interpretive aids or background principles. After the HRA, Convention rights became directly relevant to public authorities and legislation through sections 3, 4, 6 and 7. Yet the common law retained independent force. The Supreme Court has repeatedly emphasised that domestic constitutional principles are not displaced by the Convention. In Osborn, Lord Reed insisted that fairness at common law should not be treated as a mere reflection of article 6 ECHR. In Kennedy, several Justices preferred to analyse access to information and open justice through domestic constitutional principle rather than by stretching article 10.

The modern doctrine therefore sits at the intersection of old and new. Its older aspect is Entick: executive action needs lawful authority. Its modern aspect is Simms: statutory authority will not lightly be read as authorising the violation of fundamental rights. Its contemporary controversy is Privacy International and UNISON: how far may the courts go in defending access to justice and the supervisory jurisdiction when Parliament appears to have legislated in restrictive terms? Durham essays should present this history not as antiquarian background, but as the explanation for why the common law remains constitutionally active after the HRA.

The first principle is legality in the narrow, executive sense. Public authorities must identify a lawful source for what they do. A minister, police officer, prison governor or regulator cannot justify interference with liberty, property or privacy by appealing to public interest alone. The source may be statute, prerogative, common law power, or sometimes contractual or proprietary capacity; but it must exist and it must be used within its legal limits. Entick remains the canonical authority. This principle is not a 'right' in the ordinary sense, but it protects rights by denying the executive a general power to interfere.

The second principle is the principle of legality in statutory interpretation. This is the modern doctrine most often examined under the label 'common law constitutional rights'. Its core proposition is that general or ambiguous statutory words are not taken to authorise interference with fundamental rights. Parliament may legislate contrary to such rights, but it must squarely confront what it is doing and use clear words. Lord Hoffmann's speech in Simms is the standard citation. The doctrine is partly democratic and partly constitutional. It is democratic because it requires Parliament, not the executive or an implication, to take political responsibility for rights-infringing legislation. It is constitutional because it treats certain rights as occupying a special status within the legal order.

The third principle is access to justice. This is among the strongest common law rights. It covers access to the courts, access to legal advice for the purpose of litigation, and the preservation of the court's supervisory jurisdiction over public authorities. Witham held that subordinate legislation imposing court fees was unlawful where it effectively prevented persons from bringing claims, absent clear statutory authority. UNISON developed the point at Supreme Court level by holding that employment tribunal fees were unlawful because they prevented access to justice and frustrated statutory rights. The right is not merely individual. Courts repeatedly describe access to justice as essential to the rule of law because legal rights are meaningless if they cannot be vindicated.

The case law begins with Entick v Carrington, but modern exam answers should not stop there. Entick is essential because it frames the executive as legally subordinate. Its constitutional importance is not that it announces a general bill of rights. It is that the State cannot invade property or liberty without a legal warrant. The government official is not above ordinary law.

The modern interpretive doctrine is usually traced to cases concerning prisoners. In Leech and Simms, the courts resisted executive rules restricting prisoners' access to legal correspondence or journalists. The prisoner context is important because it tests whether fundamental rights survive in institutions of high administrative control. The answer was yes, unless Parliament clearly provides otherwise. Simms is the leading authority for the principle of legality and should be cited in almost every essay on this topic.

Witham then applied constitutional rights reasoning to delegated legislation imposing court fees. Laws J treated access to the courts as a constitutional right and held that subordinate legislation could not abolish or substantially impair it without clear statutory authority. Daly, in the prison context, combined common law fairness, access to legal correspondence and a more intensive standard of review. It is often discussed as a bridge between Wednesbury unreasonableness and proportionality.

Osborn is a landmark because it re-centred common law procedural fairness after the HRA. Lord Reed warned against reducing domestic public law to Convention analysis. The common law has its own reasons for requiring fair hearings: participation, dignity, legitimacy, and better decision-making. Kennedy performed a similar role for open justice and access to information, with several judgments preferring common law constitutional analysis to over-expansion of article 10.

UNISON is the strongest contemporary statement of access to justice. The Supreme Court quashed the employment tribunal fees order because it effectively prevented many claimants from enforcing statutory employment rights. The judgment is constitutionally significant because it treats access to courts and tribunals as necessary to the rule of law itself. It also shows how common law rights may invalidate delegated legislation where the parent Act does not clearly authorise the obstruction.

Privacy International concerns ouster clauses and the supervisory jurisdiction. The Supreme Court held that a statutory provision did not exclude judicial review for errors of law by the Investigatory Powers Tribunal. The judgments are divided and difficult, but the constitutional theme is clear: courts are reluctant to conclude that Parliament has excluded review of legal limits. For Durham purposes, it connects this week to Weeks 2 and 4: parliamentary sovereignty remains formally central, but the rule of law shapes how far courts will read legislation as permitting unreviewable executive power.

See practice questions section below.

See further reading section below.