1 Crown Office Row’s David Manknell acted as junior counsel to the Parole Board in this case. He had no involvement in the writing of this post.
Writing in his magisterial new work, Human Rights and the UK Supreme Court, Professor Brice Dickson noted that the Human Rights Act had created ‘an internationalized system of human rights protection rather than a constitutional one.’ Indeed, there had been a marked resistance on the part of the Supreme Court to use the common law to achieve the same goal of human rights protection. In Osborn v The Parole Board the Supreme Court seemed to resile from this position.
Osborn, and the co-joined appeals, concerned the circumstances in which the Parole Board is required to hold oral hearings. Osborn had been recalled to prison after an immediate breach of his licence conditions. Booth and Reilly had been sentenced to life imprisonment, and in both cases the minimum term had expired. The appellants sought early release and had been denied an oral hearing by the Parole Board under the operation of the statutory regime (detailed in paras 3-17). Instead their cases had been decided on paper by a single anonymous member of the Board.
The appellants challenged these decisions by way of judicial review. Osborn and Booth were unsuccessful both before the High Court and Court of Appeal. Reilly, however, was more successful before the Belfast High Court. Treacy J concluded that in failing to provide an oral hearing the Board had not only failed to act fairly at common law it had also acted incompatibly with Article 5(4) European Convention on Human Rights. However, on appeal to the Court of Appeal in Northern Ireland Treacy J’s decision was reversed on the grounds that the factual basis on which the contested decisions turned were not of such critical importance that fairness required an oral hearing in the determination of the relevant issues.
The Supreme Court unanimously allowed the appeals. Lord Reed, who spoke for the Court, held that by denying the appellants an oral hearing in the circumstances of their cases the Board had breached the requirements of procedural fairness that it owed them at common law. While noting that the requirements of fairness vary with the context of each case Lord Reed nevertheless stipulated in some depth what he called ‘general guidance’ (detailed in paras 80-96). With respect to Article 5(4) ECHR Lord Reed determined that as the common law duty of fairness satisfied the requirements of that provision, it followed that the Board had also acted incompatibly with the appellant’s Convention rights.
From a human rights perspective Osborn is a significant case. Before the Supreme Court the appellants had argued the case on the basis of the HRA/ECHR, giving little space to domestic law in their submissions (para 54). This approach was, in the Supreme Court’s opinion, wrong. Human rights law is not a distinct area of the law but permeates the entire legal system. Thus in accordance with the principle of subsidiarity the general guarantees of the ECHR are to be fulfilled via the more specific provisions of domestic law. (paras 55-56). The failure of domestic law to do so may be remedied not only by the legislature but also by the courts. The courts discharge this role by developing the common law and interpreting legislation.
According to Lord Reed the HRA provides ‘a number of additional tools enabling the courts and government to develop the law when necessary to fulfill those guarantees.’ (para 58) However, the ECHR was not to be seen as ‘Moses and the Prophets’. Human rights are protected by domestic law. And domestic law had to be the starting point in the consideration of such claims. It is wrong to think that:
because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, “it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply” (HM Advocate v Montgomery 2000 JC 111, 117).’
In support of this position Lord Reed cited a number of common law cases where human rights had been vindicated by the common law rather than the Convention. (R (Daly) v Secretary of State for the Home Department  UKHL 26 – right to confidential communication with a lawyer; R (West) v Parole Board  UKHL 1 – right to a fair hearing; A v Secretary of State for the Home Department (No 2)  UKHL 71 – use of torture derived evidence at trial; R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420 – open justice principle at common law). And then, naturally enough, his Lordship went on to decide Osborn on the basis of the common law before confirming that this was Convention compatible.
Where then does this leave the HRA/ECHR and the common law? We have for some time been told that there are not to be parallel claims in the shadow of the HRA. For example, in Re McKerr  UKHL 12 counsel argued that the common law might be developed to include an obligation to conduct an effective investigation into Gervaise McKerr’s death. Lord Nicholls rejected this concluding that:
‘I have grave reservations about the appropriateness of the common law now fashioning a free standing positive obligation of this far reaching character. Such a development would be far removed from the normal way the common law proceeds. But I need not pursue this wider question. The submission fails for more straightforward, orthodox reasons. The effect of counsel’s submission, if accepted, would be that the court would create an overriding common law obligation on the state, corresponding to article 2 of the Convention, in an area of the law for which Parliament has long legislated.’ (para 32)
Similarly, in Watkins v Home Office  UKHL 17 the House of Lords held that as Parliament through the HRA had manifested its intention that ‘core human (and constitutional) rights protected by the Act [should] be remedied under it’ the courts should therefore not develop a parallel system of remedies at common law (Lord Bingham para 26 and Lord Rodger para 64). In JD (FC) v East Berkshire Community Health NHS Trust  UKHL 23 Lord Bingham stated the problem in starker terms ‘the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention … I prefer evolution.’ (para 50)
And in Wainwright v Home Office  UKHL 53 there was no continuing development of the common law in an area falling within the scope of the Convention. Not only was the protection of privacy best dealt with under the HRA, the area was also one requiring a detailed approach ‘which can be achieved only by legislation rather than the broad brush of common law principle.’ (para 33, Lord Hoffmann) None of this authority was discussed in Osborn, and it might be in time that this case will be seen as one that was decided on its facts.
However, behind this sudden change in emphasis may be a dawning realisation that the HRA may not be a permanent feature of the constitution. The Act, of course, provides both authority and clarity. Not only has the application of Convention rights been mandated by Parliament, the HRA sets out a self contained framework for dealing with such claims. ‘Little Strasbourg’ works well in Little Britain. Which is why no doubt the courts have been keen to promote the HRA over the common law.
But what happens if the HRA is repealed? Could the common law fill the void? That is a moot point for common law constitutional rights have developed only fitfully particularly since the HRA entered force. Indeed, while the courts have recognised some rights and freedoms at common law it would overstating matters to claim that a common law bill of rights exists. Certainly the building blocks for one are present should the courts wish to do so, though that is probably something that deserves a fuller post of its own.
This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol.
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