The Fundamentality of Rights at Common Law

The concern of this chapter is with the senses in, and the extent to, which common law constitutional rights can properly be regarded as fundamental. In the context of the United Kingdom’s constitution, that issue is placed in particularly sharp relief by the (at least superficial) tension between very idea of fundamental rights and the notion of a sovereign Parliament that, if it really is sovereign, must be capable of limiting or even abrogating rights, however ‘fundamental’ they might be. A crucial question thus arises about whether rights can in any meaningful sense be regarded as fundamental within in a legal system that adheres to the concept of legislative supremacy. This, in turn, raises a series of issues that this chapter sets out to interrogate. For instance, it is necessary to consider what it actually means for a right to be ‘fundamental’ and, in particular, whether any meaningful sense of fundamentality can co-exist with the notion of parliamentary sovereignty. This, in turn, raises questions about the ways in which rights can be protected — and thus potentially accorded a pragmatic degree of, if not absolute, fundamentality — without denying the capacity of a sovereign Parliament to restrict or remove them. It also raises questions — which take us into deeper constitutional waters — about the limits of parliamentary authority, and about whether it remains accurate to conceive of common law constitutional rights as inevitably vulnerable to legislative revocation. In this chapter, I argue that while the answers to some of these questions (perhaps inevitably) remain uncertain, due appreciation of the constitutional context within which common law rights and parliamentary sovereignty sit facilitates an understanding of such rights that accords to them a meaningful, if not an unqualified, form of fundamentality. The analysis set out in this chapter proceeds in three stages. First, the capacity of common law rights to enjoy perceived legitimacy — which, for reasons that will be explained, may in turn bear upon their fundamentality as a matter of legal practice — will be considered. Second, from the discussion concerning legitimacy three sets of distinctions will be distilled, each of which is relevant to the senses in which common law rights might be ‘fundamental’. These distinctions — between what will be termed hard and soft understandings of fundamentality, theoretical and operational senses of the same, and the depth and breadth of common law rights — serve to calibrate more precisely the extent to and the way in which common law rights might properly be considered to be fundamental. Third, the mechanisms through which common law rights’ fundamentality is capable of finding expression within the confines of the UK’s constitutional framework will be considered. Here, the focus will be on the role of courts as reviewers of the legality of administrative action and as interpreters of legislation. This inquiry will be undertaken in principally empirical, as distinct from normative, terms: that is, the purpose of the chapter is not to argue that the UK constitution ought to be conceived of in a particular way so as to furnish a given degree of protection to fundamental rights; rather, the aim is to examine the capacity of the UK constitutional order, as it is presently understood, to protect rights in ways that render them meaningfully ‘fundamental’.