The English Common Law as a Vehicle for the Protection of Uncodified Constitutional Rights

Christina Lienen

UCL Faculty of Laws

Whereas constitutional rights jurisprudence is well-established in Canada, in the United Kingdom, a traditionally rights-skeptic jurisdiction, the jurisprudential foundation and normative reach of constitutional rights remains contested. It is only recently that the UK Supreme Court has started to refer to common law concepts that are constitutional in character – interests such as freedom from torture, access to the courts and open justice – as ‘rights’, grounding their existence and necessity in the rule of law. Analysing this rights jurisprudence and its underlying judicial reasoning promises to facilitate a better understanding of the nature of the UK constitution more generally as it provides important insights into the constitutional role of the judiciary, the use of interpretative constitutional mechanisms such as the principle of legality, and the function and reach of individual rights protection in this constitutionally unique jurisdiction. 

In this contribution I will make two claims. First, contemporary common law constitutional rights jurisprudence is but one example of the UK’s uncodified constitution moving closer towards a legal constitution, signifying a departure from its political constitutionalism roots. Second, while this is a positive development, there are two factors that undermine the effectiveness and the legitimacy of this development, namely (i) its reactive nature and (ii) its ardent commitment to the past.

A gradual move towards legal constitutionalism

One crucial step towards the contemporary development of common law constitutional rights was the watershed moment marked by several seminal judgments in the 1960s, which initiated a gradual moving away from strictly adhering to statutory language to taking into account constitutional principles such as fairness and natural justice. Thus, in Ridge v Baldwin [1963] UKHL 2 it was held that a breach of the common law requirement to have a fair hearing would render a decision void, whereas in Padfield and Others v Minister of Agriculture, Fisheries and Food and Others [1968] 1 All ER 694 we find authority for the proposition that there can never be unfettered ministerial discretion in public law cases. Cases like these paved the way for the more recent judgments of this jurisprudence, such as UNISON v Lord Chancellor [2017] UKSC 51, by providing a more nuanced and richer constitutional framework marked by substantive principles as well as powerful interpretative mechanisms.

UNISON v Lord Chancellor is a primary exemplar for the current move towards legal constitutionalism: it represents a new high-water mark for the judicial recognition of the paramount importance of the rule of law. In a single majority judgment, Lord Reed declared the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 void ab initio on the basis of influential legal-philosophical writings by Edward Coke, case law from the first wave of common law constitutional rights in the 1980s and 1990s, and ‘the right of access to justice [which] is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law’.

Common law constitutional rights are part of a bigger wave of constitutionalism at the UK Supreme Court; other strands include the judicial recognition of constitutional statutes, which challenges the notion of political constitutionalism through the judicial entrenchment of important unwritten constitutional values. There has also been a more uncompromising approach towards unequivocal statutory language that is deemed to be incompatible with constitutional principles such as the separation of powers in some cases.

Finally, the gradual departure from political constitutionalist thinking is further strengthened by the very recent UK Supreme Court decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22. Reasoning analogously to the famous House of Lords decision in Anisminic v Foreign Compensation Commission [1969] 2 AC 14, the Supreme Court found that the jurisdiction of the High Court had not been ousted by the wording of section 67(8) of the Regulation of Investigatory Powers Act 2000, according to which ‘determinations, awards and other decisions of the [Investigatory Powers] Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’. Rather than it being a matter of ordinary statutory interpretation, Lord Carnwath reasoned in stark contrast to the Court of Appeal judgment, one had to take into account the common law presumption against ousting the jurisdiction of the High Court. His subsequent reasoning amounts to saying that the boundaries of the principle of Parliamentary Sovereignty are determined by the courts and the operation of the rule of law.

The English common law – a suitable vehicle for human rights protection?

Common law constitutional rights are a positive development. They shift the focus away from mere procedural equality and unlimited majority rule, and they enable - and demand - the protection of minimum rights that are indispensable in a legitimate legal order. Thus, they partially align the UK with comparable liberal democracies. However, several aspects can be detected that cast doubt over the real strength and philosophical cogency of this development.

The first is that common law constitutional rights jurisprudence has almost always developed in a reactive rather than a principled and organic way. Driven largely by external factors and influences – most notably the obligations arising under the European Convention on Human Rights – they lack a strong internal drive and, most importantly, they lack a justificatory basis. Despite their enforcement in high-impact judgments over the past few decades, their autochthonous basis remains weak. Rather than focusing on the normative underpinnings of these constitutional rights, in the majority of the judgments analysed the emphasis is on the comparison between international and domestic levels of human rights protection, stressing the capabilities and sufficiency of the English common law. This has come at the expense of addressing one fundamental question: why is it legitimate for the UK judiciary to enforce against the state rights that are not codified in a written charter, but instead developed by reference to unwritten constitutional principles, and by extension morality? 

Secondly, the principled development of a comprehensive human rights catalogue is held back by the English common law’s affinity for the past. This had led to a disproportionately strong judicial protection of procedural rights whereas constitutional rights which are equally normatively desirable and essential, such as the right not to be discriminated against and the right to free speech, remain heavily underdeveloped or are unable to carry a judgment on their own, i.e. without reference to other legal sources. Further, certain rights that are well established in other jurisdictions are simply not recognised at all. Part of the maturing of this development has to be the transition away from considering what we have historically protected judicially to what it is that we ought to be protecting judicially normatively.

Taken together with other characteristics not further explored here, such as the English common law’s traditional deference to the elected branches of state and the frequent gap between rhetoric and the actual availability of rights and remedies, these observations call into question the English common law’s ability to act as an effective and satisfactory vehicle for the protection of individual rights that are indispensable in a democracy.

Christina Lienen is a PhD candidate at UCL’s Faculty of Laws.

Suggested Citation: Christina Lienen, ‘The English Common Law as a Vehicle for the Protection of Uncodified Constitutional Rights’ IACL-AIDC Blog (10 June 2019) https://blog-iacl-aidc.org/unwritten-constitutional-principles/2019/5/25/the-english-common-law-as-a-vehicle-for-the-protection-of-uncodified-constitutional-rights