Common Law Constitutional Rights is a collection of essays edited by Mark Elliott and Kirsty Hughes. It was published in 2020 by Hart Publishing, with a foreword written by Lord Reed, the President of the United Kingdom Supreme Court. The book addresses the current and potential capacity of the common law to protect fundamental rights. It takes as its point of departure recent jurisprudence of the UK Supreme Court that has placed particular emphasis on the common law as as repository of such rights, notwithstanding the availability of the Human Rights Act 1998 as an instrument for the protection of fundamental rights. Interrogating questions about the capacity of the common law to safeguard basic rights is valuable in itself, not least because it shines a light on the very nature of the common law constitution, and is valuable too in practical terms, given that the common law, in contrast to legislation such as the 1998 Act, is an enduring, hard-wired feature of the legal system. In an era when the commitment of political institutions to the judicial protection of human rights is in some doubt, the extent to which the courts enjoy inherent powers in this regard at common law is an issue that assumes a heightened, even acute, degree of practical pertinence. 

 

In Common Law Constitutional Rights, a team of distinguished contributors addresses two sets of key issues. In the first part of the book, contributors focus on particular rights, inquiring into the extent to which those rights presently enjoy protection as a matter of common law. The rights considered include those pertaining to bodily integrity (in a chapter by Natasa Mavronicola), access to justice (Se-shauna Wheatle), property (Tom Allen), privacy (Kirsty Hughes), freedom of expression and voting (Jake Rowbottom), freedom of assembly and association (Gavin Phillipson) and equality (Colm O'Cinneide). In the second part of the book, the focus shifts to a set of cross-cutting issues that go to the heart of the capacity of the UK constitution to acknowledge and vouchsafe fundamental rights. In this part, the issues addressed include the extent of common law rights' fundamentality (Mark Elliott), the relationship between common law rights and legislation (Alison Young), the interaction of common law rights and executive action (Joanna Bell), the relevance of such rights at the devolved level (Brice Dickson) and the reach and potential of fundamental rights at common law (Tom Fairclough). 

 

Further information about Common Law Constitutional Rights can be found on the Hart Publishing website