Common Law Rights: Balancing Domestic and International Exigencies

Abstract

The protection of human rights through common law principles and values has a greater potential than has been recognised hitherto. First, the adoption at common law of the proportionality test of interferences with rights shows that, when human rights are at issue, the courts will apply an exigent test, allowing interferences only if, amongst other things, a less intrusive measure could not have been used. Secondly, the principle of legality, along with common law constitutionalism as developed recently by the Supreme Court, now means that there is a common law pendant to the rule in s. 3(1) of the Human Rights Act 1998. Thirdly, in cases where the protection offered by the Act is displaced by obligations under the Charter of the United Nations, there is no displacement of common law rights, which continue to operate. Fourthly, common law rights are more open to the influences of the customary international law of human rights than are Convention rights. These factors combine to mean that the future of common law rights is an auspicious one.

Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective

“…67 Although the Conservative Party has more recently backtracked on this pledge, 68 the possibility of repeal of the HRA has led to a renewed focus on the protective potential of 'common law constitutionalism'. 69 This discussion of the use of tort law as a mechanism for holding the British government to account for overseas violations of international human rights law and international humanitarian law can be regarded as contributing to this debate. The UK has also been mooting the idea of derogating from the ECHR in relation to certain military operations.…”