I have been thinking a good deal recently — partly because I will soon be giving a Current Legal Problems lecture on the topic — about the relationship between common-law constitutional rights and rights enshrined in the ECHR and given domestic effect by the Human Rights Act 1998. A stream of recent Supreme Court decisions — including Osborn v Parole Board  UKSC 61, Kennedy v The Charity Commission  UKSC 20, R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3 and A v BBC  UKSC 25 — has placed new emphasis upon the common law as a source of fundamental rights and values, and it is hard to resist the supposition that the ground is thus being prepared for the possible repeal of the HRA and withdrawal from the ECHR, both of which possibilities are now explicitly contemplated by the Conservative Party.
Against this background, the risk arises of approaching the common law through rose-tinted spectacles: even of going so far as to suppose that if the HRA were repealed and the UK to withdraw from the Convention, not much would change because the common law would fill the resulting gap. There is some force in this argument: as the cases mentioned above remind us, the common law has not gone away — and nor, as Lord Reed pointed out in Osborn, has it necessarily remained static while the HRA and the Convention have been centre-stage. At the same time, however, it cannot simply be assumed that business as usual would continue in the absence of the HRA and the ECHR.
Today’s Supreme Court judgment in Moohan v Lord Advocate  UKSC 67 [judgment] [press summary] underlines this point. The case involved a challenge to the legality of the Scottish Independence Referendum (Franchise) Act 2013, an Act of the Scottish Parliament, which prohibited prisoners from voting in the referendum. The Act’s legality was questioned on grounds including its compatibility with Article 3, Protocol 1 ECHR and with a putative common-law right to vote. The Supreme Court’s analysis focussed on the ECHR point. It concluded by a 5-2 majority that although (as is well known) the ECHR, as interpreted by the Strasbourg Court, prohibits a blanket ban on voting by prisoners, this applies only to participation in elections as distinct from referendums. In this context, much of interest was said about the so-called mirror principle, concerning the extent to which UK courts must follow and may go beyond Strasbourg jurisprudence, the dissentients taking a liberal line: note, in particular, Lord Wilson’s analysis at paragraphs 104-105 of his judgment, where he points to evidence of what he considers to be a substantial retreat from the mirror principle.
The common-law argument was, by contrast, a mere sideshow; relatively little was said about it. However, what was said is illustrative of the impact that the repeal of the HRA and withdrawal from the ECHR might have — and, therefore, of how such steps, by forcing reliance on the common law alone, might change things. Two points are worth underlining here. They concern, respectively, the normative reach and hierarchical status of common-law rights as distinct from Convention rights; in both of these respects, it is arguable that a significant distinction arises between the two forms of rights.
Lord Hodge (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agreed) paraphrased the argument made for the appellants as follows:
In essence Mr O’Neill QC argued that because we live in a developed liberal parliamentary democracy the common law had developed to recognise as a fundamental or constitutional right a principle of universal and equal suffrage, subject only to proportionate limitations, such as for a minimum age, which must be provided for by law.
However, Lord Hodge was not willing to go this far. While he had “no difficulty in recognising the right to vote as a basic or constitutional right”, he did not think “that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate”. Indeed, Lord Hodge did not consider the right to vote to be a common-law right at all. He observed that the right has “for centuries … been derived from statute”, and said that it was “not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise”.
Lady Hale adopted a similar position:
It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd.
There is a significant tension between (on the one hand) the positions adopted by the Lord Hodge and Lady Hale and (on the other hand) what we are sometimes told about common-law rights. The vision of such rights that is often advanced — Lord Reed’s judgment in Osborn being perhaps the leading example — is of the common law as a dynamic institution. Indeed, in Osborn, Lord Reed suggested that the evolution of common-law rights had continued (even if we had not noticed it) during the currency of the HRA. The implication (as I read Lord Reed’s judgment) is that if the present, statute-based human-rights system were scrapped, we might well find lying in its wreckage a body of common-law rights significantly greater and more vibrant than that which obtained pre-HRA.
This view, however, does not sit comfortably with the position adopted by Lord Hodge and Lady Hale in Moohan. It would, of course, have been surprising if they had identified a common-law right entitling all prisoners to vote in all referendums as well as in all elections; but to rule out the possibility of any common-law right to vote strikes me as odd. It suggests that, at least in certain circumstances, the notion of common-law constitutional rights is set in aspic, the existence of statute law foreclosing the possibility of the emergence or development of a common-law right. This arguably reveals a misreading of both the relationship between common law and statute law and, more fundamentally, of the relationship between rights and legislation. Given that the former represent benchmarks against which the legitimacy of the latter may fall to be evaluated, it is hard to see why the existence of one should preclude the existence of the other.
Only Lord Kerr (dissenting) took a more liberal approach. He expressed no concluded view on this point, but did say:
The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. In this regard, it marches in step with other European states … It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law.
It would be mistaken to extrapolate too far from one decision. However, the position adopted by the majority in Moohan serves as an important reminder that it cannot be taken for granted that the normative reach of the rights recognised at common law matches that of the rights set out in the Convention. Perhaps more fundamentally, it also calls into question what might be referred to the absorption thesis, according to which, through some sort of osmosis, the common law is taken to have assimilated the Convention rights by operation of the HRA.
Even if a common-law right requiring (some) prisoners to be allowed to vote in (some) referendums had been found to exist in Moohan, it is clear that its practical implications would have been significantly different from those of the Convention right entitling some prisoners to vote in elections. This relates, ultimately, to the hierarchical status of common-law as distinct from Convention rights within the domestic constitutional order. As is well known, common-law rights — like Convention rights, thanks to section 3 of the HRA — receive recognition and are, in a sense, enforced primarily through the vehicle of statutory interpretation. This option, however, is closed off when the legislation in question is, as here, very clear. When such circumstances arise in relation to Convention rights, the further possibility of a declaration of incompatibility under section 4 of the HRA arises; in contrast, no such possibility exists (or, at any rate, has been acknowledged) so far as common-law rights are concerned.
What, then, can be the impact — if any — of a common-law right in such a situation? The answer to that question turns in large part upon the constitutional status of the legislation that may conflict with the right. In Moohan, the legislation in question was an Act of the Scottish Parliament. Such legislation is not cloaked by the protective effect of parliamentary sovereignty, and is therefore — as the Supreme Court affirmed in AXA General Insurance Ltd v The Lord Advocate  UKSC 46 — vulnerable to invalidation on common-law as well as ECHR and EU grounds.
The position is different, however, if the legislation in question is an Act of the UK Parliament — to which the doctrine of parliamentary sovereignty is generally taken to continue to apply. For this reason, Lord Kerr acknowledged in his judgment that even if a common-law right to vote could have the effect of casting doubt upon the lawfulness of the Scottish legislation, the same would not be true of the UK legislation upon which (in this respect) the Scottish Act was modelled.
This, however, is subject to a possibility identified by Lord Hodge, in a passage that grants him a free pass to the pantheon of senior judges who have expressed less than fulsome support for the notion of parliamentary sovereignty:
While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate, at least in the context of the doctrine of the sovereignty of the United Kingdom Parliament: see AXA General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122, Lord Hope (paras 49-51) and in relation to the Scottish Parliament Lord Reed (paras 153- 154). But such a circumstance is very far removed from the present case, and there is no need to express any view on that question.
Whether — in some far-removed circumstances — courts would make good on judicial threats (or promises) of this sort is a question I have addressed elsewhere. For the time being, the key point is a more limited, but still crucial, one. The possibility of issuing a declaration of incompatibility amounts to a very helpful intermediate option that removes any need for courts to make an unpalatable choice between upholding or refusing to enforce legislation that conflicts with fundamental rights. Absent the power to issue declarations of incompatibility under the HRA, it is clear that courts would be presented in human-rights cases where consistent construction were impossible with a much starker dilemma than any they presently face.
As dicta from cases like Jackson and AXA — and, now, Moohan — indicate, the possibility of courts selecting the nuclear option cannot be entirely discounted. What is, however, crystal clear is that that option would be exercised (if ever) only in the direst circumstances. The upshot is that, in a post-HRA, post-ECHR scenario, circumstances might arise in which the courts would confer stronger protection on rights than is presently the case, i.e. by striking down (or refusing to enforce) legislation, rather than simply declaring its incompatibility. But such judicial activism would be likely to occur only in the face of legislation striking at the very essence of the right in question: it seems likely that, when writing the passage above, Lord Hodge had in mind such legislative abuses as the disenfranchisement of all women, or all men, or all members of a particular ethnic group.
Where does this leave us? It suggests that if the HRA were repealed and if the UK were to withdraw from the ECHR, the courts would continue to protect human rights, but that such protection would be diminished in two respects. First, the bodies of common-law rights and Convention rights may not — and, cases like Mahood suggest, are not — co-extensive. Rights falling into the latter but not the former category would therefore be unprotected unless the common law were to evolve so as newly to encompass them. Second, in many situations, common-law rights, like Convention rights, would be protected through the process of statutory construction. However, in cases concerning clearly incompatible legislation, the courts’ options would be at once both more extensive and more limited. The possibility of a declaration of incompatibility would disappear (unless the courts were to find an inherent jurisdiction to issue such a remedy), to be replaced with the possibility — we can put it no higher than that — of the non-application or invalidation of wholly egregious legislation.
The power and potential of the common law in this area should not be underestimated, but nor should it be exaggerated. In all likelihood, replacing the HRA/ECHR regime with exclusive reliance upon the common law would amount to swapping a human-rights system that confers relatively strong protection in a large number of cases for one that would apply to a narrower range of rights and experience greater difficulty in the face of flatly inconsistent legislation. The prospect of in extremis strike-down is clearly significant — but it would be rash to conceive of it as a substitute for the now-unexceptional possibility of issuing a declaration of incompatibility.