Author Interview: Common Law Constitutional Rights

There is an important body of legal reasoning in the United Kingdom Supreme Court in which members of the senior judiciary have asserted the primary role of common law constitutional rights and critiqued legal arguments based first and foremost on the Human Rights Act 1998. Their calls for a shift in legal reasoning have created a sense amongst both scholars and the judiciary that something significant is happening. Yet, despite renewed academic and judicial interest, there is limited insight into what common law constitutional rights we have, how they work and what they offer. This book is the first collection of its kind to systematically explore both the content and role of individual common law constitutional rights alongside the constitutional significance and broader implications of these developments. It therefore contributes not only to our understanding of what the common law might be capable of offering in terms of the protection of rights, but also to our understanding of the nature of the constitutional order of which such rights are an integral part.

What inspired you to take up this project?

The origins of this project can be traced back to around 2014-5, when Kirsty gave a paper in our research series at the Centre for Public Law on privacy, normativity and rights in English law, and Mark gave a Current Legal Problems lecture on the protection of rights at common law. This was in the wake of a series of UK Supreme Court judgments that reinvigorated the notion of common law constitutional rights after a period when the HRA, following its enactment, had very much occupied the centre stage. The return of the common law to the limelight reignited debate in this area, encouraging reflection on both where the common law presently stands and on what its potential might be. As there was limited insight into what common law rights exist, we thought it would be interesting to look systematically at potential clusters of common law constitutional rights in English law alongside an analysis of their broader constitutional role.

What challenges did you face in writing the book?

There were a number of challenges and potential pitfalls in completing this project. First, it was of paramount importance that we secured contributors that were able to offer the range of perspectives that were needed for this project. This could have been a real stumbling block but we were in fact very lucky to get a fantastic team of contributors onboard. This relates to a major issue that a project of this nature inevitably raises, namely, that in a tightly constructed edited collection of this kind where each chapter fits into the broader picture, the entire project may be jeopardised if a contributor is unable to complete their promised chapter. We were fortunate that our contributors produced outstanding chapters that brought together the range of perspectives that the project needed as it would have been very difficult to replace a chapter. While risky, it was a methodology which we believe payed off in offering an insight that could not be provided either by a sole authored monograph (where the author would lack the range of expertise that our contributors were able to offer) or in a looser edited collection where there is the not the same commitment to a focal point and a common set of questions. A further methodological challenge in completing the book was the impossibility of covering everything – certainly there were many more rights that we would have liked to have considered and other aspects of their role that we would have liked to have analysed. Hard decisions had to be made but we are confident in our choices and believe that the book offers a unique perspective which we hope will play an important role in stimulating further and broader discourse.

With the book in print it is perhaps helpful to other writers, in the midst of their own projects, to note that we each encountered a number of personal challenges during the course of writing this book. Indeed the birth of two children and serious health issues meant that the book was probably completed later than we originally anticipated. It is, however, perhaps better for having had a longer timeframe for judicial developments and it provided a creative focus for us during those times. We were fortunate that the manuscript for the book was submitted before COVID-19.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

Debates about potential repeal of the Human Rights Act 1998 and/or withdrawal from the European Convention on Human Rights continue, particularly in the light of the UK’s reluctance to commit to continuing membership of the ECHR in its negotiations as to the future of the UK’s relationship with the EU. As far as the question of human rights is concerned, any consideration of withdrawal from the ECHR necessarily invites — indeed, demands — reflection upon what is inherent within the domestic constitutional order. It follows that, as the UK stands at a crossroads in terms of its relationships with the European legal orders, it is necessary to critically and carefully examine the innate capacity — and limitations — of the UK constitution itself. That task can, and ought to be, undertaken in a variety of ways. Attentiveness to the track-record of the common law must necessarily be part of the analysis, alongside consideration of whatever might be its as yet unrealised potential. Examination of extant jurisprudence is clearly imperative, but so too is analysis of the framework of constitutional theory within which that jurisprudence sits and which will shape the trajectory of the courts’ curation of common law rights into the future. And it is essential that relevant matters are considered at both the micro- and macro-levels: thus, while it is necessary to interrogate the common law’s achievements and potential in respect of specific rights, it is equally necessary to appreciate the opportunities and the limitations that arise from the UK’s unusual constitutional architecture. Reflection on such matters serves an obviously practical purpose if, as it may well be in the foreseeable future, the common law’s capacity to go it alone in this sphere is ever tested. But, in fact, reflection on such matters also serves a deeper, if less immediately practical, objective. It requires us to confront questions about the essence of the British constitution: questions about what would be left were potentially transitory legislative frameworks and institutional schemes to fall away. Thus it is hoped that, by subjecting the notion of common law constitutional rights to critical scrutiny, this book contributes not only to our understanding of what the common law might be capable of in this sphere, but also to our understanding of the nature of the constitutional order of which such rights are an integral part.

Hart Publishing is offering a 20% discount to IACL-AIDC readers purchasing this title online at www.hartpublishing.co.uk and using the code HE6 to access the discount.

Professor Mark Elliott is Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge.

Kirsty Hughes is a Senior Lecturer specialising in Human Rights and Public Law at the University of Cambridge.

Author Interviews