Rights and freedoms guaranteed by common law

Rights and freedoms guaranteed by common law

The 800th anniversary of Magna Carta approaches in 2015. The Prime Minister asserts its relevance to ‘our laws and values’, but at the same time threatens repeal of Human Rights Act 1998 (without any apparent hint of irony). In the light of this and of the introduction to the subject by Geoffrey Bindman QC  it is worth reflecting on what is the true source of rights and freedoms guaranteed by English law; and of how these are threaded through the work of a family lawyer (eg advice privilege, disclosure and the ‘open justice principle’, see eg Precedent and practice (NLJ)).

The right balance? 

In her address to the Constitutional and Administrative Law Bar Association on 12 July 2014 Lady Hale SCJ balanced the rights bases of jurisprudence under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention 1950’) with those of the English common law. Laws LJ has stressed how important it is to be clear that the common law protects both freedoms and rights. From these assertions, and from what follows the following essentials can be derived:

  • the vast majority of the most fundamental of the rights and freedoms protected by English law are derived from the common law
  • many statutory provisions which deal with rights and freedoms are no more than a codification of long existing rights (see eg Lord Cooke in the italicised passage in Daly below); and
  • many Convention rights (though not all: it is arguable that Convention jurisprudence has given the common law a new approach to privacy) can only be explained, in English law, by reference to the common law (see eg in relation to legal professional privilege as explained below).

It is therefore crucial that any judge who is considering a statute appreciates that it may be only a step on a common law line which a statute then – and only then – ‘recognises’. The statute does not create the law; still less does the European

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