HRA and the common law constitutional rights

The Human Rights Act 1998 supplements but does not displace the common law's protection of fundamental rights. Section 11 HRA expressly preserves pre-existing rights, confirming that Convention rights operate alongside common law protections. The principle of legality—that statutes cannot abrogate fundamental rights without express words (Simms)—remains operative post-HRA and applies to all fundamental rights recognised at common law, not just Convention rights. Courts apply both regimes: the HRA provides a statutory framework for enforcing Convention rights against public authorities (s 6), while the common law continues to protect rights through interpretive presumptions, procedural fairness standards, and substantive protections that may exceed Convention standards (Osborn, Kennedy). This dual system reflects the UK's uncodified constitution, where rights derive from multiple sources rather than a single constitutional text.

R v Secretary of State, ex parte Simms [2000] 2 AC 115: Lord Hoffmann established the modern principle of legality—fundamental rights cannot be overridden by general or ambiguous words. Essential because it confirms common law rights protection operates independently of the HRA.

R (Ullah) v Special Adjudicator [2004] 2 AC 323: Lord Bingham articulated the 'mirror principle'—domestic courts should follow clear Strasbourg authority. Significant as the high-water mark of HRA primacy, subsequently relaxed.

Osborn v Parole Board [2014] AC 1115: Lord Reed held common law procedural fairness exists independently of Article 6, warning courts not to weaken common law protection by treating it as merely mirroring Convention rights. Watershed case reasserting common law autonomy.

Kennedy v Charity Commission [2015] AC 455: Supreme Court recognised common law right to information independent of Article 10, stating HRA and common law should develop 'in harmony'. Establishes the pluralist model of rights protection.

R (AB) v Secretary of State for Justice [2021] UKSC 28: Supreme Court (Lord Reed) unanimously dismissed the appeal of a 15-year-old held in prolonged removal from association at Feltham YOI; removal from association is not in itself inhuman or degrading and ill-treatment must reach a minimum level of severity to engage Article 3 ECHR, assessed on all the facts in line with Strasbourg jurisprudence.

Courts first identify whether a fundamental right is engaged—either Convention or common law. For statutory interpretation, apply both the principle of legality (all fundamental rights) and s 3 HRA (Convention rights only). The principle of legality requires express words to abrogate rights; s 3 requires reading 'so far as possible' compatibly with Convention rights. For judicial review, proportionality now applies to both Convention and common law rights (Daly). Where defendant is not a public authority under s 6 HRA, only common law applies. Where both regimes engage, courts seek 'harmonious' interpretation (Kennedy). Strategic choice matters: common law may offer broader protection (no 'victim' requirement, applies horizontally) but cannot trigger s 4 declaration of incompatibility. Consider section 11 HRA which preserves all pre-existing rights—courts cannot ignore common law protections merely because Convention right also engaged.

Students wrongly assume HRA is exclusive source of rights post-2000—always consider common law alternatives, especially where s 6 'public authority' requirement not met. Confusing principle of legality with s 3 HRA: former is common law presumption applying to all fundamental rights (Simms), latter is statutory rule for Convention rights only. Overstating mirror principle: Ullah significantly relaxed by Osborn/Kennedy—courts must 'take into account' not 'follow' Strasbourg. Ignoring s 11 HRA which expressly preserves other rights. Failing to distinguish horizontal/vertical effect: HRA binds only public authorities; common law provides broader horizontal protection between private parties.