Common Law Rights v. Formal Laws

Introduction

Common law rights are judge‑made protections recognised through case law and long‑standing legal traditions rather than statutes or international treaties. They sit alongside statutory rights and the Human Rights Act 1998 (HRA), shaping how courts control public power and protect personal freedoms such as free speech, fair process, and access to the courts.

To show that a protection counts as a common law right, courts look for two things:

• Clear roots in legal history and practice
• Ongoing relevance to today’s values and conditions

From Magna Carta (1215) to modern Supreme Court rulings, these rights continue to influence everyday decisions in public law and some private disputes.

What You’ll Learn

• What common law rights are and how they differ from statutory and Convention rights
• Key historical milestones: Magna Carta, Petition of Right, Habeas Corpus Act, Entick v Carrington
• Core principles: the principle of legality, a presumption of liberty, and procedural fairness
• How courts apply these rights in privacy, free speech, and access‑to‑justice cases
• How common law rights interact with the Human Rights Act 1998 and the ECHR
• Practical steps for advising clients, drafting policies, and running litigation

Core Concepts

Historical Roots and the Rule of Law

Common law rights grow out of the English legal tradition:

• Magna Carta (1215): limited arbitrary power and recognised basic liberties
• Petition of Right (1628): pushed back against unlawful taxation and detention
• Habeas Corpus Act (1679): strengthened protection against unlawful imprisonment
• Entick v Carrington (1765): confirmed that state officials must point to lawful authority for intrusions such as searches and seizures

These landmarks set a clear theme: the state needs clear legal authority to interfere with personal liberty or property. Individuals, by contrast, may do what is not forbidden by law.

Tip: When assessing a state action, ask first: “What legal power permits this?” If the answer is vague or missing, the action is at risk.

The Principle of Legality

The principle of legality is a strong interpretive rule used by the courts:

• Parliament must use clear words if it intends to limit basic rights
• General or ambiguous language is not enough to curtail rights such as free speech or access to the courts
• The rule preserves constitutional values while respecting Parliamentary sovereignty

Leading authority: R v Secretary of State for the Home Department, ex parte Simms [1999] — the House of Lords held that a prison rule restricting interviews with journalists could not lawfully cut across free expression without clear statutory authority.

Presumption of Liberty and Government Powers

A simple contrast guides many cases:

• Individuals: free to do anything not prohibited by law
• Public bodies: may only do what the law permits

Consequences:

• If a public authority interferes with liberty, property, or privacy, it must point to a valid legal power
• Courts will scrutinise the scope, purpose, and limits of that power
• Where powers are broad, courts read them in a rights‑sensitive way unless Parliament has clearly said otherwise

Key cases: Entick v Carrington (1765); also modern ouster clause cases show reluctance to accept broad exclusions of review unless the text is unmistakable.

Procedural Fairness (Natural Justice)

Common law guarantees fair process:

• The right to a fair hearing (the chance to know the case and respond)
• The rule against bias (decision‑makers must be impartial)
• Where appropriate, reasons and disclosure so the person affected can engage with the case
• The exact requirements depend on context, including the seriousness of the decision’s impact

Core authorities include Ridge v Baldwin [1964] and Osborn v Parole Board [2013], which reaffirm that fairness is not optional; it is a basic requirement unless Parliament has clearly limited it.

Common Law Rights and the Human Rights Act 1998

The HRA gives domestic effect to the European Convention on Human Rights, but it does not replace common law rights:

• Courts often decide issues using common law first, then turn to the HRA if needed (see Osborn v Parole Board; Kennedy v Charity Commission)
• The principle of legality sits alongside the HRA’s interpretive duty under section 3
• Some areas (e.g. privacy) are now shaped by Convention case law and statute, but the common law still matters, especially where the HRA does not apply or where a public body is not a “public authority” under section 6
• If the UK’s relationship with the ECHR were to change, common law rights would remain as domestic protections

Tip: In litigation, plead both common law and HRA arguments where available. They can support each other and offer different remedies.

Key Examples or Case Studies

Entick v Carrington (1765) 19 St Tr 1029

• Context: The King’s messengers broke into Entick’s premises and seized papers under a general warrant.
• Holding: The state must identify lawful authority for interferences. No such power existed, so the acts were unlawful.
• Why it matters: Sets a lasting rule that public power must be justified. It continues to shape privacy, search, and seizure law.

Malone v Metropolitan Police Commissioner [1979] Ch 344 and Malone v UK (1984) 7 EHRR 14

• Context: The police intercepted telephone calls. Malone challenged the practice domestically and then in Strasbourg.
• Domestic ruling: No general common law right to privacy was recognised at that time; the court would not declare the practice unlawful without a statutory standard.
• Strasbourg ruling: The European Court of Human Rights found a breach of Article 8 because interference was not “in accordance with the law.”
• Why it matters: Exposed gaps in domestic privacy protection and led to legislation regulating interception. It also shows the interplay between common law, Parliament, and the ECHR.

R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33

• Context: Prison rules effectively prevented prisoners from speaking to journalists seeking to investigate miscarriages of justice.
• Holding: Restrictions on free speech require clear Parliamentary authorisation. General powers could not support a ban of this kind.
• Why it matters: A classic statement of the principle of legality. Basic rights cannot be overridden by broad or vague language.

Osborn v Parole Board [2013] UKSC 61

• Context: Prisoners sought oral hearings before the Parole Board.
• Holding: Fairness at common law required oral hearings in certain cases. The Court resolved the case using domestic fairness principles rather than starting with the HRA.
• Why it matters: Confirms that common law fairness remains a powerful tool in public law.

R (Unison) v Lord Chancellor [2017] UKSC 51

• Context: Employment tribunal fees led to a sharp fall in claims.
• Holding: The fees order was unlawful because it effectively blocked access to justice, a constitutional right recognised at common law.
• Why it matters: Shows how common law rights can strike down secondary legislation that undermines access to the courts.

Practical Applications

• Frame claims with both tracks in mind

  • Plead common law rights (legality, fairness, access to justice) alongside HRA grounds where available
  • If the defendant is not a “public authority” under the HRA, common law may still help

• Test public powers before substance

  • Ask if there is a clear legal basis for the interference
  • Check whether the decision pursues the statutory purpose and stays within the power’s limits
  • Consider whether the decision‑maker took into account what the statute requires, and ignored what it does not

• Apply the principle of legality to statutes and rules

  • Look for clear words if a measure restricts speech, liberty, or access to the courts
  • Treat general language with caution when basic rights are in play
  • Be wary of “ouster clauses” and other attempts to limit review

• Build fairness into procedures

  • Provide notice, disclosure where needed, an opportunity to be heard, and an impartial decision‑maker
  • Give reasons where fairness calls for it, especially in high‑impact or contested decisions
  • Tailor the level of process to the context, but record why the approach taken is fair

• Handle privacy with care

  • Recognise that modern interception and surveillance are governed mainly by statute (e.g. the Investigatory Powers Act 2016)
  • For private disputes, consider misuse of private information and breach of confidence as common law actions shaped by Article 8 principles
  • For public bodies, document legal authority and necessity before any intrusion

• Remedies and strategy

  • Judicial review offers quashing orders, declarations, and mandatory orders; damages are rare at common law unless a tort is made out
  • Under the HRA, declarations of incompatibility and damages may be available against public authorities
  • Observe judicial review time limits and pre‑action protocols; pick the right forum early

• Evidence to support rights‑based arguments

  • For legality: identify the exact statutory or prerogative power relied on
  • For fairness: show the real‑world impact of the decision and why more process was needed
  • For speech and privacy: explain why the restriction goes beyond what the law clearly permits

Summary Checklist

• Identify whether the actor is a public body and what power they rely on
• If a right is restricted, check for clear statutory words (principle of legality)
• Apply the presumption: citizens are free unless prohibited; the state needs authority
• Build and challenge procedures against common law fairness standards
• Use common law first where it answers the issue; add HRA arguments where relevant
• Cite core cases: Entick, Simms, Osborn, Unison, and (for privacy context) Malone and subsequent legislation
• Select remedies and forums with time limits and evidential needs in mind

Quick Reference