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  • Philip Sales

This paper examines the role of rights and fundamental rights in English public law and private law in recent times. It argues that the idea of fundamental rights has been more significant in the filed of public law and seeks to explain why. It compares the operation of domestic fundamental rights with the rights in the European Convention of Human Rights and suggests a methodology for identifying the existence and scope of the former. The paper considers the possible legal effects which might follow from repeal of the Human Rights Act 1998.

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1 N. Duxbury, Elements of Legislation (Cambridge 2013); J. Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Cambridge 1999).

2 See e.g. In re Hallett's Estate (1880) 13 Ch.D. 696, 710; G. Postema, Bentham and the Common Law Tradition (Oxford 1986), ch. 8. In the constitutional context, see N. Johnson, In Search of the Constitution (Oxford 1977), 134, 149, 219–21.

3 See M. Loughlin, The Idea of Public Law (Oxford 2003), ch. 7; R. v Lord Chancellor, ex p. Witham [1998] Q.B. 575, 581, per Laws J.: “… the common law does not generally speak in the language of constitutional rights.”

4 P. Sales, “Three Challenges to the Rule of Law in the Modern English Legal System”, in R. Ekins (ed.), Modern Challenges to the Rule of Law (Wellington 2011), ch. 10.

5 See e.g. Kennedy v The Charity Commission [2014] UKSC 20.

6 R. Stevens, Torts and Rights (Oxford 2007); see D. Nolan and A. Robertson (eds), Rights and Private Law (Oxford 2012): as Peter Cane observes at p. 50: “… for fundamentalists one of the main functions of rights in private law (apart, of course, from promoting individual autonomy) is to constrain judicial discretion.”

7 D. Beyleveld and S. Pattinson, “Horizontal Applicability and Horizontal Effect” (2002) 118 L.Q.R. 623.

8 Derbyshire County Council v Times Newspapers Ltd. [1993] A.C. 534, 551.

9 I use the term “natural law” to cover the range of moral argument exterior to positive rules of law, but which seeks to find a place in legal reasoning, including but not limited to the classical idea of natural law. Schauer highlights the tradition in US legal thinking which refers to moral considerations external to positive rules but then seeks to integrate them into the rules by a process of interpretation: in K.N. Llewellyn, The Theory of Rules: Edited with an Introduction by Frederick Schauer (Chicago 2011), 23–27.

10 E.g. Rainy Sky v Kookmin Bank [2011] UKSC 50; [2011] 1 W.L.R. 2900; see P. Sales, “Equity and Human Rights”, in P.G. Turner (ed.) Equity and Administration (forthcoming).

11 Ridge v Baldwin [1964] A.C. 40, 67, 85.

12 R. White, “Separation of Powers and Legislative Supremacy” (2011) 127 L.Q.R. 456; Loughlin, The Idea of Public Law, p. 128.

13 R (Jackson) v HM Attorney-General [2005] UKHL 56; [2006] 1 A.C. 262.

14 J. Dunn, Setting the People Free: The Story of Democracy (London 2005); J. Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” (2002) 21 Law & Phil. 137, s. 5.

15 R. Fallon, Jr, “‘The Rule of Law’ as a Concept in Constitutional Discourse” (1997) 97 Columbia L.R. 1; R. Bellamy, “The Rule of Law and the Rule of Persons” (2001) 4 Critical Review of International Social and Political Philosophy 221; Waldron, “Is the Rule of Law”.

16 J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard 1980); J. Habermas, “Human Rights and Popular Sovereignty: The Liberal and Republican Versions” (1994) 7 Ratio Juris 1. However, the extent to which particular background conditions are necessary for effective operation of democracy is itself a contestable issue, in relation to which the argument that it should be settled by majoritarian decision-making procedures is itself strong: J. Waldron, Law and Disagreement (Oxford 1999); J. Tully, “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy” (2002) 65 M.L.R. 204; B. Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton 2005), ch. 1; D. Crump, “How Do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy” (1995–6) 19 Harv.J.L. & Pub. Policy 795, 876ff.

17 K.M. Sullivan, “The Justices of Rules and Standards” (1992) 106 Harv.L.Rev. 22; A. Scalia, “The Rule of Law as a Law of Rules” (1989) 56 U.Chi.L.Rev. 1175.

18 G. Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge 2009); P. Sales and B. Hooper, “Proportionality and the Form of Law” (2003) 119 L.Q.R. 426.

19 See e.g. M. Taggart, “Proportionality, Deference, Wednesbury” [2008] N.Z. Law Rev. 423; J. McLean, Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge 2012), 238.

20 R v Secretary of State for the Home Department, ex p. Pierson [1998] A.C. 539.

21 P. Sales, “A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998” (2009) 125 L.Q.R. 598.

22 See e.g. Maxwell on The Interpretation of Statutes, 12th ed. (P. St. J. Langan, London 1969), 116–23; Pierson [1998] A.C. 539, 573G–575D, per Lord Browne-Wilkinson; cf. Duxbury, Elements of Legislation, pp. 36–39.

23 Pierson [1998] A.C. 539, 587C–590A, per Lord Steyn, moving from the common law rights-based formulation to a wider “principle of legality”, referring to “long-standing principles of constitutional and administrative law”.

24 Sales, “Three Challenges”.

25 Witham [1998] Q.B. 575.

26 R. v Secretary of State for the Home Department, ex p. Simms [2000] 2 A.C. 115.

27 Ibid., at pp. 131–32.

28 Witham [1998] Q.B. 575, 585.

29 Watkins v Home Office [2006] UKHL 17; [2006] 2 A.C. 395, at [64], per Lord Rodger. The focus on fundamental rights emerged at a time when more customary constraints had diminishing effect: L. Siedentop, Democracy in Europe (New York 2001), ch. 4 and p. 142; Johnson, In Search of the Constitution, ch. 3; but this focus creates particular tension with democratic values due to the relatively ‘closed’ character of the British legal class: Siedentop, ibid., at p. 150; Loughlin, The Idea of Public Law, pp. 128–30.

30 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] Q.B. 151; R. (HS2 Action Alliance Ltd.) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 W.L.R. 324.

31 P. Sales and R. Ekins, “Rights-Consistent Interpretation and the Human Rights Act 1998” (2011) 127 L.Q.R. 217; Sir Jack Beatson, “Common Law, Statute Law and Constitutional Law” (2006) 27 Stat. L.R. 1, 13.

32 Duxbury, Elements of Legislation, p. 226.

33 Cf. other background aids to interpretation such as White Papers and Law Commission reports.

34 Contrast this conceptualisation of the role of domestic constitutional rights with some interpretations of common law constitutionalism, which treat those rights as pre-political or external to, and controlling of, the parliamentary process of making legislation: T. Poole, “Questioning Common Law Constitutionalism” (2010) 25 L.S. 142; J. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge 2010), ch. 2.

35 There are different problems of indeterminacy regarding identification of Convention rights under the ECHR, which require elaborate reasoning and detailed knowledge of the case law of the ECtHR to establish what they mean, before using them as interpretive tools under s. 3 of the HRA.

36 Loughlin, The Idea of Public Law, p. 128.

37 See e.g. R. (Osborn) v Parole Board [2013] UKSC 61; Bank Mellat v HM Treasury (Nos. 1 and 2) [2013] UKSC 38; [2013] UKSC 39; Kennedy [2014] UKSC 20, at [45]–[47], [133]; Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 W.L.R. 1591; R. (Faulkner) v Secretary of State for Justice [2013] UKSC 23, [29]. See R. Clayton, “The Empire Strikes Back: Common Law Rights and the Human Rights Act” [2015] Public Law 3.

38 See S. Marks, “Backlash: The Undeclared War against Human Rights” (2014) E.H.R.L.R. 319.

39 Much may depend on the form of legislation which might replace the HRA and on whether the UK continues to be a member of the EU, and so bound by the Charter of Fundamental Rights within the scope of EU law.

40 Cf. Ely, Democracy and Distrust, pp. 58–59; R. Bork, The Tempting of America: The Political Seduction of the Law (New York 1990), ch. 11.

41 R. Geuss, History and Illusion in Politics (Cambridge 2001), ch. 3; Webber, The Negotiable Constitution, pp. 7–8 and ch. 2.

42 T. Koopmans, Courts and Political Institutions: A Comparative View (Cambridge 2003).

43 Sales, “A Comparison”.

44 See e.g. A. v Secretary of State (No. 2) [2005] UKHL 71; [2006] 2 A.C. 221 (right not to have decisions based on evidence extracted under torture); Pham [2015] UKSC 19; [2015] 1 W.L.R. 1591 (right not to be deprived of citizenship at [60], [98], [108]–[110]).

45 M.-A. Glendon, Rights Talk: The Impoverishment of Political Discourse (New York 1991); C.R. Epp, The Rights Revolution (Chicago 1998); Loughlin, The Idea of Public Law, pp. 125–28; Goldsworthy, Parliamentary Sovereignty, pp. 9–13.

46 See P. Sales, “Law and Democracy in a Human Rights Framework”, ch. 15, in D. Feldman (ed.), Law in Politics, Politics in Law (Oxford 2013), 231–32.

47 See e.g. R. (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, at [152], per Lord Kerr J.S.C.

48 Siedentop, Democracy in Europe, ch. 4. Cf. D. Beetham, The Legitimation of Power (Basingstoke 1991), ch. 5; Loughlin, The Idea of Public Law, ch. 7.

49 Fallon, Jr, “‘The Rule of Law’”, pp. 49–50 (“In contexts marked by normative consensus, there might be broad agreement about how standards should be applied, and standards would permit both citizens and officials to be ruled by law”); Loughlin, The Idea of Public Law, ch. 1.

50 Loughlin, The Idea of Public Law, p. 128.

51 See e.g. Crump, “How Do the Courts”; Bork, The Tempting of America; M. Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture and Community (New York 2010), ch. 3.

52 Crump, “How Do the Courts”, p. 804.

53 Ibid., at pp. 859–60.

54 Ibid., at pp. 860, 913. .

55 Ibid., at pp. 861ff. The wider the level of generality chosen, the greater is the judicial power to mould the interpretation of legislation and legal powers using the concept of fundamental rights: pp. 859–60. See also Rosenfeld, The Identity, ch. 3; P. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (New York 2011), 104–07.

56 Ibid., at pp. 898ff, 913–14; “… questions of judicial competence, conflicting objectives, linedrawing, and legislative flexibility should be emphasised in every case that breaks new ground in the categorisation of rights with elevated status” (p. 906).

57 See the reference to constitutional tradition in R. (Bancoult) [2008] UKHL 61; [2009] 1 A.C. 453. Cf. Nairn v University of St Andrews [1909] A.C. 147, 160–61, using the same methodology to identify a constitutional tradition which could not be taken to be overridden by general words in a statute. See also T. Aleinikoff, “Constitutional Law in the Age of Balancing” (1987) 96 Yale L.J. 943, 962–63; Williams, In the Beginning, p. 61 (“… the discovery of what rights people have [is] a political and historical one, not a philosophical one”).

58 See W.I. Jennings, The Law and the Constitution, 5th ed. (London 1960), 134–36. Though not enforceable, courts sometimes pronounce upon them.

59 Cf. A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. ([1915] Indianapolis 1982), cxli.

60 Cf. J. Waldron, “Do Judges Reason Morally?”, ch. 2, in G. Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge 2008).

61 Pham [2015] UKSC 19; [2015] 1 W.L.R. 1591 illustrates this. The interest there was underwritten by international instruments.

62 See Electrolux Home Products Pty Ltd. v Australian Workers Union (2004) 221 C.L.R. 309, 329, per Gleeson C.J.; Sales, “A Comparison”, pp. 605–06.

63 J. Rawls, Political Liberalism, expanded ed. (New York 2005), Lecture IV, “The Idea of an Overlapping Consensus”; C. Sunstein, Legal Reasoning and Political Conflict (New York 1996), ch. 2, “Incompletely Theorised Agreements”.

64 Kahn, Political Theology, ch. 3.

65 Cf. R. Fallon, “A Constructivist Coherence Theory of Constitutional Interpretation” (1987) 100 Harv.L.R. 1189, following R. Dworkin, Law's Empire (Harvard 1986).

66 See e.g. Electrolux Home Products, (2004) 221 C.L.R. 309, and the speeches of Lord Steyn in Pierson [1998] A.C. 539, and R. (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 A.C. 604, at [26]–[31].

67 See Webber, The Negotiable Constitution, chs. 4–6.

68 Thoburn [2002] EWHC 195 (Admin); [2003] Q.B. 151; and R. (HS2 Action Alliance Ltd.) [2014] UKSC 3; [2014] 1 W.L.R. 324.

69 Perhaps following a referendum, as with the Scotland Act 1998, or in the exceptional circumstances in which a new constitutional settlement was consciously created after the Glorious Revolution; cf. B. Ackerman, We the People: Foundations (Harvard 1991).

70 Something like this happened with Magna Carta. The importance of the European Communities Act 1972 was underlined by the referendum in 1975.

71 Cf. Thoburn [2002] EWHC 195 (Admin); [2003] Q.B. 151, at [63]; and e.g. F. Ahmed and A. Perry, “The Quasi-Entrenchment of Constitutional Statutes” [2014] C.L.J. 514.

72 Constitutional force may be acquired, or may conceivably come to be lost. What is in question is whether an inference can be drawn from a constitutional principle existing at the time the legislation was passed as to the meaning that the enacting Parliament intended that legislation to have. Accordingly, the constitutional tradition identified in Nairn [1909] A.C. 147 that women do not have the vote, would not be relevant to legislation passed in 2016.

73 See note 37 above, in particular in R. (Osborn) [2013] UKSC 61, at [62]. In Moohan v Lord Advocate [2014] UKSC 67, the potential relevance of drawing on international law when deciding whether a common law constitutional right exists was acknowledged, at [33], [35].

74 See note 42 above.

75 C. McCrudden, “A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights” (2000) 20 O.J.L.S. 499; J. Goldsworthy, “Questioning the Migration of Constitutional Ideas: Rights, Constitutionalism and the Limits of Convergence”, ch. 5, in S. Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge 2006).

76 See J. Bell, “The Relevance of Foreign Examples to Legal Development” (2011) 21 Duke J.Comp.& Int'l L. 431.

77 E. Weinrib, The Idea of Private Law (Harvard 1995).

78 See Allen v Flood [1898] A.C. 1, 198–99, per Lord Watson; 118–19, per Lord Herschell; 152–53, per Lord Macnaghten; also Quinn v Leathem [1901] A.C. 495, 533–34, per Lord Lindley; and now see OBG Ltd. v Allan [2007] UKHL 21; [2008] 1 A.C. 1.

79 See Nolan and Robertson, Rights and Private Law.

80 P. Cane, “Rights in Private Law”, ch. 2, in Nolan and Robertson, Rights and Private Law, p. 62.

81 See In re Hallett's Estate (1880) 13 Ch.D. 696, 710: “… the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial.” Historically, the common law was capable of development – “The life of the common law has been in the unceasing abuse of its elementary ideas” (S. Milsom, Historical Foundations of the Common Law, 2nd ed. (London 1981), 6) – but not in the same self-critical, reason-based way which is familiar today.

82 Sales, “Equity and Human Rights”; also D. Laycock, “The Triumph of Equity” (1993) 56 L.C.P. 53.

83 N. Duxbury, The Nature and Authority of Precedent (Cambridge 2008), 175.

84 Duxbury, The Nature, ch. 5; J. Stone, Precedent and Law: Dynamics of Common Law Growth (Sydney 1985), 45; K. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston 1960), 185, 202, 213ff; Fallon, “A Constructivist Coherence Theory”, pp. 1202–04, 1242.

85 M. Eisenberg, The Nature of the Common Law (Harvard 1988), 1–2, and ch. 4.

86 Ibid., chs. 5–8; B. Cardozo, The Paradoxes of Legal Science (New York 1928), 14–15, 30, 36–37.

87 See e.g. FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, at [45] (it is “highly desirable … to lean in favour of harmonising the development of the common law round the world”).

88 Re Spectrum Plus Ltd. (in liquidation) [2005] UKHL 41; [2005] 2 A.C. 680, at [32]–[34].

89 N. Jansen, The Making of Legal Authority: Non-Legislative Codifications in Historical and Comparative Perspective (Oxford 2010), 19 (“… the law has its own conceptual and discursive rationality; this is especially true for private law. This alone suffices for making private law – at least to a substantial degree – independent and autonomous from the general political, social and moral discourse”).

90 See Watkins [2006] UKHL 17; [2006] 2 A.C. 395.

91 See e.g. Oppenheimer v Cattermole [1976] A.C. 249; Kuwait Airways Corp. v Iraqi Airways Co. (No. 6) [2002] UKHL 19; [2002] 2 A.C. 883; Elton John v MGN Ltd. [1997] Q.B. 586 (assessment of damages for libel, informed by Article 10).

92 See the quotation at note 28 above, and the authorities cited. The experience of English law in seeking to adjust the tort of negligence to ECtHR jurisprudence was not positive: C. Booth and D. Squires, The Negligence Liability of Public Authorities (Oxford 2006), 121–31. This illustrates the dangers of developing English law too readily by reference to the ECtHR jurisprudence, without careful reflection on how well that jurisprudence fits with domestic legal principles; cf. R. Bagshaw, “Tort Design and Human Rights Thinking”, ch. 6, in D. Hoffman (ed.), The Impact of the UK Human Rights Act on Private Law (Cambridge 2011). Michael v Chief Constable of South Wales [2015] UKSC 2 exemplifies a more cautious approach.

93 Reynolds v Times Newspapers Ltd. [2001] 2 A.C. 127, 200–04; also 207–08, per Lord Steyn; 214–15, per Lord Cooke. See now the Defamation Act 2013.

94 Ibid., at p. 200; also pp. 207–08, per Lord Steyn; pp. 223–24, per Lord Cooke; p. 234, per Lord Hope.

95 E.g. H.W.R. Wade, “Horizons of Horizontality” (2000) 116 L.Q.R. 217; Beyleveld and Pattinson, “Horizontal Applicability”.

96 Wainwright v Home Office [2004] 2 A.C. 406.

97 A. v B. plc [2003] Q.B. 195, at [4].

98 Campbell v MGN Ltd. [2004] 2 A.C. 457; also McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73.

99 See G. Phillipson, “Privacy”, ch. 7, in Hoffman, The Impact; and see Michael [2015] UKSC 2, at [124].

100 Sales, “Equity and Human Rights”.

101 J. Wright, “A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond” [2014] Public Law 289.

102 See e.g. Malhous v Czech Republic, ECtHR (GC), decision of 13 December 2000.

103 A. Young, “Mapping Horizontal Effect”, ch. 2, in Hoffman, The Impact.

104 Sales, “Equity and Human Rights”.

105 D.J. Harris, M. O'Boyle, and C. Warbrick, The Law of the European Convention on Human Rights, 2nd ed. (Oxford 2009), 18–21, 342–43. Also see H. Collins, “On the (In)compatibility of Human Rights Discourse and Private Law”, in H.-W. Micklitz (ed.), Constitutionalization of European Private Law (Oxford 2014), ch. 2.

106 Neij and Sundi Kolmisoppi v Sweden (app. No. 40397/12), ECtHR, judgment of 19 February 2013, paras. 150, 155; Axel Springer AG v Germany (2012) 55 EHRR 6, para. 88; Delfi AS v Estonia (2016) 62 EHRR6, para. 139.

* Lord Justice of Appeal. This article was developed from a presentation at the Dicey Symposium at All Souls College, Oxford on 7 November 2014 on the Place of Fundamental Rights in the UK Legal Order. I am grateful to the participants and to Patrick Elias, Hugh Collins, Mark Elliott, and the anonymous reviewers for the C.L.J. for their comments on previous drafts. The responsibility for errors and omissions is mine.

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