The “vigour” of common law rights and values: A v BBC [2014] UKSC 25

Earlier this week, I wrote in my review of recent developments that it is possible to identify a stream of jurisprudence that has emerged from the UK Supreme Court over the last year which places particular and renewed emphasis on the common law as a source of fundamental constitutional values and rights. I cited Osborn v Parole Board [2013] UKSC 61, Kennedy v The Charity Commission [2014] UKSC 20 and R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 as key examples. To that trilogy of recent Supreme Court decisions can now be added A v BBC [2014] UKSC 25.

For present purposes, it suffices to say that the case concerned the question whether it was lawful for a court to direct that the claimant, in proceedings contesting on human rights grounds the lawfulness of his proposed deportation, be identified only by his initials, and for the court to issue directions under s 11 of the Contempt of Court Act 1981 prohibiting the publication of information that would allow A to be identified. The perceived need for anonymity arose because A was a convicted child sex offender who sought to resist deportation on the ground that his status as such would place him at risk of death or ill-treatment upon his return, contrary to Articles 2 and 3 of the European Convention on Human Rights. Withholding A’s identity was a central plank of the countervailing argument that A could be deported without breach of relevant Convention rights. In these proceedings, the BBC challenged the steps taken by the courts to preserve A’s anonymity. It failed because the Supreme Court concluded that although maintaining A’s anonymity compromised relevant constitutional values and human rights (on which see below), the arguments in favour of doing so, within the factual matrix of this case, were overwhelming: to have removed A’s anonymity would have consumed the very basis for effecting A’s lawful deportation.

Unsurprisingly, the BBC placed particular emphasis upon the right to freedom of expression conferred by Article 10 ECHR, as Lord Reed—giving the sole judgment of the Court—explained:

It was submitted on behalf of the BBC that the source of the court’s power to allow a party to legal proceedings not to disclose his identity publicly, in a situation where Convention rights are engaged, is to be found in the Convention rights themselves, rather than in the common law. Reference was made to In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 23 per Lord Steyn, and In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned with the conduct of court proceedings. They concerned a different issue, namely the jurisdiction of the English courts to make orders contra mundum restraining publicity relating to court proceedings, and in particular the publication of information identifying persons involved in those proceedings: a jurisdiction which might otherwise have been in doubt, as Lord Rodger noted.

However, Lord Reed—who is emerging as a leading exponent of this approach—cautioned that the starting-point for the court should be the common law, not the Convention. In particular, it was the common-law principle of open justice that was centrally in play here:

It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening) [2011] UKSC 34; [2012] 1 AC 531, Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179 and Kennedy v The Charity Commission [2014] UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable. In another recent decision, R (Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, this court referred at para 61 to the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees, and cited as an illustration the case of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 Intervening) [2012] EWCA Civ 420; [2013] QB 618, where an issue falling within the ambit of article 10 was decided by applying the common law principle of open justice. Similar observations were made in Kennedy v The Charity Commission at paras 46 and 133; and the majority judgments in that case provide a further illustration of the same approach.

How, then, should we conceive of the relationship between common law values (such as open justice) and common law rights, on the one hand, and Convention rights, on the other? On this point, Lord Reed said that the approach set out in the dicta above

does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40. As the case of V v United Kingdom demonstrates, it is however necessary to bear in mind that, although the Convention and our domestic law give expression to common values, the balance between those values, when they conflict, may not always be struck in the same place under the Convention as it might once have been under our domestic law. In that event, effect must be given to the Convention rights in accordance with the Human Rights Act.

On this view, then, the Convention—given effect in domestic law by the Human Rights Act 1998—is not irrelevant, nor is it merely a sideshow. Common law values and rights fall to be understood, applied and—if necessary—modified in the light of the Convention. However, what is striking about A v BBC is that, as in Kennedy and Osborn, it is the common law that forms the centre of gravity: as Lord Reed put it in the passage set out above, its “vigour” remains undiminished by the fact that Convention rights may also be in play.

As I pointed out in my recent developments post, it is hard to resist drawing the inference that decisions like this are, at least in part, taken with an eye to the possible repeal of the HRA. It is also arguable that they engage in a form of revisionism, in that they paint a picture of the common-law constitutional landscape somewhat at odds with the rather more barren version of it that preceded the enactment of the HRA. Such criticisms, however, overlook the inherent dynamism of the common law, in the light of which it is unsurprising that is has evolved, and continues to do, thanks to the domestic legal prominence accorded to Convention rights by the HRA. Viewed thus, rather than bolting Convention rights onto national law, with all the potential transience that such an analysis implies, the HRA can be better understood as a measure that has implanted such rights—as well as reinvigorating extant common law values—in a way that confers upon them a far less fragile domestic status.