Common Law Constitutional Rights

✍ Scribed by Mark Elliott; Kirsty Hughes (editors)

• Publisher: Hart Publishing
• Year: 2020
• Tongue: English
• Leaves: 351
• Category: Library

✦ Synopsis

There is a developing body of legal reasoning in the United Kingdom Supreme Court in which members of the senior judiciary have asserted the primary role of common law constitutional rights and critiqued legal arguments based first and foremost on the Human Rights Act 1998. Their calls for a shift in legal reasoning have created a sense amongst both scholars and the judiciary that something significant is happening. Yet despite renewed academic and judicial interest we have limited insight into what common law constitutional rights we have, how they work and what they offer. This book is the first collection of its kind to systematically explore both the content and role of individual common law constitutional rights alongside the constitutional significance and broader implications of these developments. It therefore contributes not only to our understanding of what the common law might be capable of offering in terms of the protection of rights, but also to our understanding of the nature of the constitutional order of which such rights are an integral part.

✦ Table of Contents

Foreword
Table of Contents
List of Contributors
1. The Nature and Role of Common Law Constitutional Rights
I. Common Law Constitutional Rights on the Agenda
II. Themes
III. Structure of the Book
IV. Concluding Remarks
PART I. THE CONTENT OF COMMON LAW CONSTITUTIONAL RIGHTS
2. The Mythology and the Reality of Common Law Constitutional Rights to Bodily Integrity
I. Introduction
II. Conceptual Starting Points: Rights as Distinct from Values
III. The Ubiquity, and Fluidity, of Bodily Integrity Protections
IV. Comparing the Common Law and the Convention on the Right to Life and the Right not to be Subjected to Torture or Ill-Treatment
V. Constitutional Legislation
VI. Optimism, Mythology, and their Limits
VII. Normative Force and Resilience
VIII. Looking Outward and the Threat of Insularity
IX. Conclusion
3. Access to Justice: From Judicial Empowerment to Public Empowerment
I. Introduction
II. The Normative Value of Access to Justice
III. Institutional Rationales and the Role of the Judiciary
IV. Beyond Judicial Empowerment to Public Empowerment
V. Realism and the Need for Positive Action
VI. Status-based Exclusion and Access to Justice
VII. Conclusion
4. A Constitutional Right to Property?
I. Introduction
II. Parliament and a Right to Property
III. The Courts and a Right to Property
IV. Property and Repeal of the Human Rights Act
V. Conclusion
5. A Common Law Constitutional Right to Privacy – Waiting for Godot?
I. Introduction
II. Privacy and the Common Law Prior to the Human Rights Act 1998
III. Are there Any Signs of a Constitutional Common Law Right to Privacy Emerging Post-HRA?
IV. How could a Constitutional Common Law Right to Privacy Come into Existence?
V. Any Constitutional Common Law Right to Privacy it is Likely to be Weaker than the Convention Right
VI. Conclusion
6. Freedom of Expression and the Right to Vote: Political Rights and the Common Law Constitution
I. Free Speech and the Vote as Fundamental Constitutional Rights
II. Freedom of Speech and the Common Law
III. The Right to Vote and the Common Law
IV. Conclusion
7. Searching for a Chimera? Seeking Common Law Rights of Freedom of Assembly and Association
I. Introduction
II. A Six-Fold Taxonomy
III. Freedom of Association at Common Law
IV. Freedom of Assembly and the Common Law
V. Conclusion
8. Equality: A Core Common Law Principle, or 'Mere' Rationality?
I. The Equality Principle Disaggregated: Equality of Status and its Formal/Substantive Aspects
II. The Constitutional Status of Equality
III. The Case for Recognising the Existence of the Equality Principle within the Common Law
IV. The Current Status of Equality within the Common Law
V. A Critical Analysis of the Status of Equality within the Common Law
VI. Conclusion – Time to Think Again
PART II. THE ROLE AND POTENTIAL OF COMMON LAW CONSTITUTIONAL RIGHTS
9. The Fundamentality of Rights at Common Law
I. Introduction
II. Legitimacy
III. Three Distinctions and their Limits
IV. Operationalisation: Judicial Review and the Separation of Powers
V. Operationalisation: Sovereignty, the Rule of Law and Statutory Interpretation
VI. Conclusions
10. Fundamental Common Law Rights and Legislation
I. Interpretation and Potential Disapplication
II. Normative Framework
III. Interpretative Presumption or Fundamental Principle of the Constitution?
IV. Legality and Disapplication Re-imagined
V. Conclusion
11. Common Law Constitutional Rights and Executive Action
I. A Definitional Issue: What is 'Judicial Review of Executive Action'?
II. Is Judicial Review an Exercise in Developing the Common Law?
III. Does Judicial Review Protect 'Rights'?
IV. Is Judicial Review 'Constitutional'?
V. Conclusion: Three Lessons Concerning the Role of Common Law Constitutional Rights in Judicial Review
12. Common Law Constitutional Rights at the Devolved Level
I. Introduction
II. The Position in Scotland
III. The Position in Wales
IV. The Position in Northern Ireland
V. Conclusions Regarding Common Law Constitutional Rights at the Devolved Level
13. The Reach of Common Law Rights
I. Introduction
II. Constitutional Context: HRA Repeal and the Common Law Revisited
III. A Principled Approach to Rights' Identification
IV. Conclusion
Index