What's wrong with the Common Law?

Though we don't have a 'Bill of Rights' per se, this does not mean that we have no rights. Nor does it mean that the only rights which are protected are those enshrined within the ECHR through the Human Rights Act (HRA) 1998. 

We have long entrusted our judiciary with safeguarding our fundamental rights. Indeed large proportions of the tort law system alone are entirely dependent on judicial interpretation and the protection or rights therein. The judiciary have proven themselves adequate to the task.  For example in trespass to the person cases rights are actionable per se, they do not require damage to have been incurred, this displays the importance which the judiciary attach to rights in spite of their not being written down in a single text. 

Indeed, going further into the realm of public law itself it is clear that the importance of vindicating rights as a key role of the judiciary has become ever more prominent. In the case of Thoburn it began to be accepted that some rights were so fundamental that they could not be overturned merely through a statute. Indeed in HS2 Action Alliance this idea was developed still further. The sophisticated notion that competing fundamental rights might be weighed against one another depending on their relative importance was established by the courts. 

Though of course such developments were originally advanced by only a few, they continue to gather support. Lords Phillips, Woolf and Neuberger all recognise the importance of these fundamental rights even in the fact of doctrines such as parliamentary sovereignty. It is clear therefore that though these rights are not written in a single text that does not mean that they are unenforceable. 

Though of course it would be beneficial to have more definitional work done (as David Feldman points out) the existence of these rights in the common law system has advantages. 

First, that new rights can be uncovered by the judiciary in the course of court proceedings as a method of adapting to our fast moving society and culture. 

Second, rights enshrined in a 'Bill' can easily become out of date and even detrimental. Take the case of the US Constitution's Second Amendment. The 'right to bear Arms', though fundamental in its time is now a historical reminiscence. It refers to an age where the US had no concept of a standing army, therefore citizens needed to defend themselves or be called upon to defend their country. Clearly, those needs are no longer relevant. The Second Amendment has become detrimental. 

A common law system of rights allows for such anomalies to be more easily ironed out. Though this can obviously lead to criticism of rights being 'easily swept aside' it is clear that the judges, highly trained and experienced individuals, are not naive. They would not allow such a situation to occur. 


Therefore the idea of a codified Bill of rights is not desirable. Our rights are protected in a substantive way through the ECHR and where this is inapplicable or unclear then our common-law system of rights aptly fills the gap. 

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