Common law constitutional rights

Common law constitutional rights are rights, principles and presumptions recognised by the courts independently of the Human Rights Act 1998 and the European Convention on Human Rights. They include access to courts, liberty of the person, procedural fairness, open justice, legal professional privilege, freedom of expression in certain settings, and the principle that state coercion requires legal authority. Their significance is not that they form a domestic bill of rights in the strong-form sense. Their significance is that they structure the relationship between citizen and state within the orthodox constitution: Parliament may legislate, ministers may govern, but executive power must be legally authorised and fundamental interests are not taken to have been abrogated by vague or general language.

This week sits naturally after Durham’s first-year treatment of parliamentary sovereignty, constitutional statutes, the rule of law, prerogative power, devolution conventions and the Human Rights Act. The central question is not whether rights matter. It is where, in the United Kingdom constitution, rights obtain their legal force. The HRA supplies a statutory technique: sections 3, 4 and 6 make Convention rights legally relevant while formally preserving Parliament’s power to legislate incompatibly. Common law rights operate differently. They arise through judicial development of the common law; they are deployed through ordinary public law doctrines; and they are often mediated through statutory interpretation by the principle of legality.

The leading modern cases show three recurring ideas. First, legality in the narrow sense: a public authority must point to a legal source for what it does. Entick v Carrington remains the canonical illustration. Secondly, legality in the interpretive sense: fundamental rights cannot be overridden by general or ambiguous statutory words. That is the point of Simms and its successors. Thirdly, legality in the institutional sense: the courts retain a constitutional function in supervising executive legality and maintaining the conditions under which law can be effective, including access to justice, procedural fairness and judicial review itself. UNISON and Privacy International are modern examples.

For Durham examination purposes, the strongest answers avoid two errors. The first is treating common law rights as merely pre-HRA history. The HRA did not abolish the common law; section 11 expressly preserves other rights and remedies. The second is treating the common law as if it gives judges an unlimited power to invalidate Acts of Parliament. It does not. The orthodox position remains that clear primary legislation prevails. The difficulty, and the intellectual interest, lies in what counts as sufficient clarity, how far courts may read statutes against fundamental rights, and whether some common law principles are so constitutional that Parliament would have to confront them expressly, and perhaps politically, before departing from them.

The language of common law constitutional rights is modern, but the underlying materials are old. The common law has long contained rules limiting arbitrary power, particularly where the executive interferes with liberty, property, papers, communication with lawyers, or access to the courts. The common law tradition did not begin with a codified text resembling the US Bill of Rights. Its constitutional method was more incremental: principles were recognised in litigation, refined through remedies, and embedded in the ordinary jurisdiction of the courts.

Entick v Carrington is the traditional starting point. Government messengers entered Entick’s premises and seized papers under a warrant issued by the Secretary of State. The King’s Bench held the search unlawful because no legal authority supported it. The point is more fundamental than trespass. The executive has no residual power to do what it considers necessary unless the law authorises it. In a constitution without a single written text, that rule performs heavy constitutional work. It protects private liberty and property by insisting that governmental interference be justified by law rather than official discretion.

The nineteenth-century Diceyan tradition expressed a related idea. Dicey famously contrasted the English constitution with systems in which officials enjoyed special administrative privileges. His account is contestable and incomplete, but its influence remains visible. Rights were not conceived primarily as abstract constitutional entitlements entrenched against legislation. They were, in Dicey’s model, secured through ordinary law, ordinary courts and remedies for official illegality. Habeas corpus, trespass, false imprisonment, judicial review and statutory interpretation all did constitutional work.

Twentieth-century developments made the older model more strained. The administrative state grew. Parliament conferred broad discretionary powers on ministers and public bodies. Welfare, immigration, prisons, policing and national security generated contexts in which ordinary liberties depended on administrative decision-making. At the same time, parliamentary sovereignty remained the dominant orthodoxy. The courts therefore developed techniques that protected fundamental interests without directly denying Parliament’s legislative supremacy. The principle of legality is the most important of those techniques. It presumes that Parliament does not intend to override fundamental rights unless it uses clear words or necessary implication.

The late twentieth century also saw the influence of European human rights law before and after the HRA. Even before the HRA came into force, courts occasionally used Convention values as an interpretive aid where domestic law was ambiguous. After the HRA, Convention rights became enforceable against public authorities, but the common law did not disappear. Instead, the courts increasingly insisted that domestic constitutional principles have their own pedigree. Cases such as Leech, Simms, Daly, Osborn, Kennedy, Evans, UNISON and Privacy International show a rights-protective common law operating alongside the HRA. This matters doctrinally because some claims may be framed without reliance on Convention rights; and constitutionally because the common law supplies a domestic vocabulary of legality, fairness, access to justice and institutional competence.

The history therefore explains the present tension. Common law rights are both conservative and creative. They are conservative because they work through established techniques: authority, interpretation, jurisdiction, remedy. They are creative because they require courts to identify which rights count as fundamental and how resistant they are to statutory interference. That dual character is why academic disagreement remains sharp.

The first principle is the requirement of legal authority. Public bodies, unlike private persons, must identify a lawful source for the coercive acts they perform. A private individual may generally do anything not prohibited by law; a public authority must act within the powers conferred upon it by statute, prerogative or common law. This is the central lesson of Entick. It is also the premise of judicial review. A decision-maker who exceeds jurisdiction, acts for an improper purpose, misconstrues the statute, frustrates the purpose of an Act, or uses a prerogative power contrary to legal limits acts unlawfully.

The second principle is the principle of legality. This is the core doctrine for common law constitutional rights. It is not a free-standing power to strike down Acts of Parliament. It is a strong interpretive presumption. Courts presume that Parliament does not intend to legislate contrary to fundamental rights, constitutional principles or the rule of law unless it does so expressly or by necessary implication. The more important the right, and the more serious the interference, the clearer the statutory language must be. Simms is the leading authority: prisoners retained a common law right to communicate with journalists for the purpose of challenging convictions, and general statutory words did not authorise a blanket policy preventing oral interviews.

The third principle is that some rights are constitutional because they are conditions of legality itself. Access to courts is the clearest example. If individuals cannot bring claims, public and private legal duties may become practically unenforceable. UNISON therefore treated unaffordable employment tribunal fees not merely as an inconvenience but as an impediment to the rule of law. Similarly, judicial review is not simply another procedure which Parliament may lightly remove by formulaic drafting. Privacy International indicates that ouster clauses are construed with constitutional seriousness because supervisory jurisdiction helps maintain the rule of law.

The case law is best understood as a sequence of constitutional functions rather than as a loose list of rights. Entick v Carrington establishes the baseline: executive interference with person, property or papers requires legal authority. It is a case about trespass, but its constitutional meaning is broader. It rejects the idea that state necessity or ministerial warrant can substitute for law.

Leech and Simms represent the modern principle of legality in operation. Both arose in the prison context, where executive management powers are necessarily broad. The courts nevertheless insisted that prisoners retain fundamental rights except where lawfully curtailed. Leech protected legally privileged correspondence. Simms protected communication with journalists where that communication might assist prisoners in maintaining claims of wrongful conviction. These decisions are not sentimental about prisoners; they are constitutional cases about whether general administrative powers authorise restrictions on access to justice and public scrutiny.

Daly marks a more intensive rights-sensitive review. The House of Lords examined a policy requiring prisoners to be absent during cell searches, which affected legally privileged correspondence. Lord Steyn distinguished ordinary Wednesbury review from proportionality, but the case also matters as a common law decision about the constitutional status of legal professional privilege. It shows that where fundamental rights are affected, the court may scrutinise justification more closely than in ordinary administrative cases.

Osborn gives procedural fairness a constitutional account. The Supreme Court rejected an unduly instrumental view of oral hearings before the Parole Board. Fairness is not only about whether the result would have been different. It is about participation, respect, accountability and the legitimacy of decision-making. This is a useful bridge to problem questions, because common law fairness often offers a direct route where Convention arguments are more elaborate.

Evans and Privacy International concern the resilience of judicial oversight. Evans involved a ministerial certificate purporting to override a judicial decision requiring disclosure under freedom of information legislation. Privacy International concerned the interpretation of an ouster clause. Both decisions are controversial because they press against apparent statutory attempts to confer finality. Their importance for this topic lies in the courts’ insistence that legality and judicial supervision are constitutional fundamentals, not technical inconveniences.

UNISON is the leading modern access-to-justice case. The Supreme Court held employment tribunal fees unlawful because they effectively prevented access to justice and frustrated statutory rights. The case is often examined with the rule of law, but it also belongs here. Access to courts is a common law constitutional right, and executive action setting fees under delegated statutory authority could not lawfully destroy the practical capacity to enforce legal rights. In a Durham exam, UNISON is usually the best authority for the proposition that some common law rights protect the conditions under which the legal system itself can operate.

See practice questions section below.

See further reading section below.