Essay question: 'The Human Rights Act 1998 was intended to bring rights home, not to displace the common law.' Discuss.
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Introduction
The Human Rights Act 1998 incorporated most of the European Convention on Human Rights into domestic law, allowing individuals to vindicate Convention rights before UK courts without needing to exhaust domestic remedies and petition Strasbourg. The White Paper Rights Brought Home (Cm 3782, 1997) stated that the Act would 'give people in the United Kingdom opportunities to enforce their Convention rights in British courts rather than having to incur the cost and delay of taking a case to the European Court of Human Rights in Strasbourg'. The question arises whether the HRA was intended to supplement the existing common law protection of fundamental rights or to supersede it. The better view, supported by the statutory text, case law, and academic commentary, is that the HRA was intended to coexist with and complement the common law, not to displace it. This essay will examine the statutory design of the HRA, the pre-HRA common law tradition, post-HRA case law, and normative arguments for the common law's continuing vitality.
Statutory design: section 11 and the preservation of existing rights
Section 11 HRA provides that reliance on a Convention right 'does not restrict' any other right or freedom conferred by domestic law. This preserves the common law's role. The Act's structure contemplates that Convention rights and common law rights may coexist. Section 2 requires courts to 'take into account' Strasbourg case law, not to apply it exclusively. Section 3 applies only to the interpretation of legislation 'so far as it is possible' to read it compatibly with Convention rights; it does not prohibit the application of common law principles. Section 6 binds only 'public authorities'; it does not purport to codify or limit the common law's horizontal effect or its application in private law.
The drafting history supports this interpretation. During the Bill's passage, Lord Irvine LC emphasised that the HRA would build upon the common law's existing protections. The Act was not intended to erase the common law but to add a statutory mechanism for enforcing Convention rights. The principle of legality, the presumption against retrospective legislation, and other common law constitutional principles were to remain operative.
The common law tradition before and after the HRA
Long before the HRA, the common law recognised fundamental rights. In R v Secretary of State for the Home Department, ex parte Simms [2000], decided shortly before the HRA came into force, Lord Hoffmann stated that 'fundamental rights cannot be overridden by general or ambiguous words' in legislation. This principle of legality has been applied consistently post-HRA. In R (Anufrijeva) v Secretary of State for the Home Department [2003], the Court of Appeal held that subordinate legislation could not remove a right of appeal without clear statutory authority. In R (Evans) v Attorney General [2015], the Supreme Court applied the principle of legality to hold that a ministerial certificate could not override a judicial decision, as this would breach the rule of law.
The principle of legality operates independently of the HRA. It applies to all statutes, pre-HRA and post-HRA, and to delegated legislation. It is a rule of interpretation rooted in the constitutional principle that Parliament is presumed not to intend to violate fundamental rights. This presumption is rebuttable, but only by express words or necessary implication. The principle of legality thus complements s 3 HRA: both are interpretive tools that protect rights, but the former applies to any fundamental right recognised at common law, whereas the latter applies only to Convention rights.
*Post-HRA case law: Osborn, Kennedy, and the reassertion of common law rights*
Initially, some judges adopted a 'mirror principle', holding that domestic courts should interpret Convention rights in line with Strasbourg case law and not develop divergent domestic standards. In R (Ullah) v Special Adjudicator [2004], Lord Bingham stated that the duty under s 2 HRA to 'take into account' Strasbourg jurisprudence meant that domestic courts should follow clear and consistent Strasbourg authority. The mirror principle implied a hierarchy: HRA rights were primary, and the common law should not develop in a way that conflicted with the Convention.
However, the Supreme Court has since rejected this hierarchical model. In Osborn v Parole Board [2013], Lord Reed held that judicial review is not limited to Convention rights. The common law has its own procedural fairness standards, which may exceed those required by Article 6 ECHR. He stated: 'It is important… that the courts should not weaken the common law's protection of human rights by treating them as no more than a mirror of the Convention rights.' This passage has become foundational for the proposition that the HRA does not exhaust or displace common law rights.
Kennedy v Charity Commission [2014] extended Osborn's logic to substantive rights. The Supreme Court held that the common law recognises a right of access to information held by public bodies, rooted in the principle of open justice and accountable government. This right existed independently of Article 10 ECHR. Lord Mance stated that the HRA and common law should develop 'in harmony'. The court declined to apply a hierarchical model in which the Convention was primary; instead, both sources of rights were to be recognised and applied according to context.
R (UNISON) v Lord Chancellor [2017] applied the principle of legality to strike down fees for employment tribunal claims. The Supreme Court held that the fees effectively denied access to justice, violating both the common law principle and Article 6. The case illustrates the convergence and complementarity of common law and Convention analysis.
Normative arguments: why the common law must not be displaced
There are principled reasons to preserve the common law's role. First, the common law is flexible and can develop organically to address novel situations. Convention rights are defined by treaty text and Strasbourg case law; the common law is not so constrained. In Moohan v Lord Advocate [2015], Lord Hodge noted that 'common law constitutional rights are not necessarily co-extensive with Convention rights'. The common law may recognise rights (such as access to justice, open justice, or legal professional privilege) that have no precise Convention analogue.
Second, the common law applies more broadly than the HRA. Section 6 HRA binds only public authorities. Disputes between private parties, or acts by non-public bodies, fall outside s 6's scope. The common law fills this gap. In Campbell v MGN Ltd [2004], the House of Lords developed the tort of misuse of private information, drawing on both Article 8 and the pre-existing equitable action for breach of confidence. The common law thus provides horizontal rights protection that the HRA alone cannot.
Third, the common law is a source of constitutional identity. The UK's constitutional tradition is one of common law constitutionalism, not codified rights. The common law embodies values—such as the rule of law, access to justice, and fair procedure—that predate the ECHR and reflect distinctively British legal culture. To displace the common law in favour of an imported rights instrument would diminish this tradition. As Trevor Allan and Mark Elliott have argued, fundamental rights inhere in the rule of law itself, not in statutory text.
Fourth, reliance on the HRA alone risks over-dependence on Strasbourg. The ECtHR's case law is not always consistent, and its judgments reflect compromises among 47 member states with diverse legal traditions. UK courts are better placed to interpret and apply rights in the domestic context. By maintaining the common law as an independent source of rights, domestic judges preserve a degree of autonomy and avoid the constitutional sensitivities associated with perceived judicial subservience to a supranational court.
Counter-arguments and rebuttal
Some scholars, including Jeffrey Jowell, have argued that the HRA represents a deliberate parliamentary choice to incorporate Convention rights, and that courts should give primacy to Convention analysis to ensure coherence and respect for the UK's international obligations. On this view, allowing the common law to develop divergent rights standards risks undermining the HRA scheme and generating conflicting jurisprudence.
This argument has force, but it overstates the risk of conflict. Section 11 expressly contemplates that Convention rights and other rights will coexist. The 'harmonious development' model articulated in Kennedy allows both sources of rights to inform judicial reasoning. Where the two conflict, the court must apply statute (because of parliamentary sovereignty), but such conflicts are rare in practice. More commonly, the common law and Convention reinforce each other, as in UNISON. Moreover, the risk of adverse judgments from Strasbourg is mitigated by the margin of appreciation, which permits domestic authorities reasonable latitude in implementing Convention rights.
Lord Sumption and others have warned that expansive common law rights creation risks judicial overreach. In Moohan, he cautioned that the common law cannot create positive rights without legislative authorisation. This concern is legitimate, but it applies equally to HRA adjudication: under s 6, courts have recognised positive obligations (such as the duty to investigate under Article 2) that require expenditure of public resources. The risk of overreach is not unique to the common law; it is inherent in rights adjudication. The proper check is judicial restraint, not displacement of the common law.
Conclusion
The Human Rights Act 1998 was not intended to displace the common law. The statutory design (especially s 11), the drafting history, and post-HRA case law all support the view that the HRA was meant to supplement, not supplant, the common law's protection of fundamental rights. The Supreme Court's decisions in Osborn and Kennedy have reaffirmed the common law's vitality and autonomy. The common law provides broader coverage (applying beyond public authorities), greater flexibility (adapting organically), and a distinctively British constitutional identity. While the HRA is a constitutional statute of central importance, it operates alongside, not in place of, the common law. The two regimes should develop 'in harmony', each informing and enriching the other. To displace the common law would impoverish the UK's constitutional tradition and undermine the very values that the HRA was meant to protect.