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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:
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 Convention 1950 or its jurisprudence. Advice privilege has been part of the common law for centuries; and it has been defined in a number of statutes (see eg Proceeds of Crime Act 2002 s 330(10), which defines ‘privileged circumstances’). However, statutory definitions do not explain the subtleties on which the privilege is based.
Common law and the European Convention 1950
Lady Hale’s starting point is to demonstrate the tendency of lawyers – often wrongly – to regard Human Rights Act 1998 and articles under the European Convention 1950 as the only, or the starting point, for a consideration of rights issues:
'…this [she said] is to misunderstand the relationship between the Convention and the common law in our domestic law, and to overlook the continued and developing protection offered by the latter.'
Critical to this relationship is the passage of Lord Cooke in R v Secretary of State for the Home Department exp Daly  UKHL 26:
' First, while this case has arisen in a jurisdiction where the European Convention 1950 applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. [The passage quoted by Lady Hale is italicised.]'
In Daly the House of Lords was concerned with the narrow issue of whether a prisoner, whose cell was being examined by prison staff in his absence, was entitled to be present when correspondence covered by legal professional privilege was being looked at. His appeal was allowed. Lord Bingham’s short speech was the main basis for the decision. He stresses the parallel approach on common law and European Convention 1950 principles:
' I have reached the conclusions [that the appeal should be allowed] on an orthodox application of common law principles…. But the same result is achieved by reliance on the European Convention. Article 8(1) [right to respect for private and family life] gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his right under article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result…'
Common law: not an ‘ossuary’
The question of the relationship of common law to the European Convention 1950 arose in Kennedy v The Charity Commission  UKSC 20 where the Supreme Court was considering a claim by a journalist to see confidential papers under Freedom of Information Act 2000. The appeal was dismissed (the journalist was not allowed to see the papers); but the court considered fully the rights in play. In a passage also referred to by Lady Hale in her July 2014 speech (italicised below), Lord Toulson (who also writes the leading text-book on Confidentiality) explains his view of the case thus:
' [My analysis] is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen's daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.'
Fundamental rights: dismantling rights and freedoms
Before looking at rights and the common law it is necessary for any politician who wishes to dismantle the Human Rights Act 1998 to recall that the rights and freedoms which the European Convention 1950 protects, are mostly those already protected by the common law. Repeal of the Human Rights Act 1998 therefore will do very little (the vast majority of the population are not prisoners who wish to vote or gay members of the armed forces). To get rid of most of what the Human Rights Act 1998 actually stands for legislation must specifically override and jettison fundamental common law rights; and to do that express statutory provision is required.
Parliament can only legislate in a way which is contrary to common law rights if it does so (Lady Hale touches on this point in her speech at page 3) clearly and in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms  All ER (D) 751; and reaffirmed the point in R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner  UKHL 21 (both case concerning fundamental rights to confidentiality and LPP).
' … the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication … [ex p Simms (above)] contains some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.'
Advice privilege: common law and the Convention
Legal professional privilege (‘LPP’) provides an example of how the common law runs alongside the Convention. In terms, which are deliberately general, European Convention 1950 Art 6(1) guarantees the right to a fair trial (or freedom from injustice); but right can only be understood by importing a variety of common law concepts which underlie it. Advice privilege (an aspect of LPP) is part of this. It has been known to the English common law at least since the 16th century (Lord Taylor provides a historical survey and defines advice privilege for the 20th century, and since, in R v Derby Magistrates’ Court exp B  1 AC 487). It is accepted as part of Convention jurisprudence (Funke v France (1993) 16 EHRR 297). Its ambit and purpose – and limitations – was examined fully again in Supreme Court in 21st century terms in early 2013 in R (Prudential plc and anor) v Special Commissioner of Income Tax  UKSC 1.
Privilege is accepted as essential to the administration of justice and thus of a fair trial. It is not guaranteed in terms by the Convention; but Article 6(1) cannot work without it. In Convention terms a ‘fair trial’ cannot be guaranteed without LPP. If Human Rights Act 1998 were repealed LPP would not be affected.
The European Convention 1950 was mostly drafted by English common lawyers, from their own common law experience. Get rid of the Human Rights Act 1998 and you find – as much alive and now with a good few European Convention 1950 ideas and concepts running through it – you find the English common law. It is a carapace which protects the same rights and freedoms which, in its different way, does the Convention. Repeal Human Rights Act 1998 and human rights legal life – thanks to the common law – will go on much as before.
David Burrows is a lawyer, writer, advocate, and trainer on family law
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