Christina Lienen: When Strasbourg Won’t Have It – Push for or Limitation of Common Law Constitutional Rights?

On 8 November 2016 the Grand Chamber of the European Court of Human Rights (‘ECtHR’) in Magyar Helsinki Bizottság v Hungary decided that Art 10 did indeed confer a right of access to information, thereby effectively overturning the UK Supreme Court’s (‘UKSC’) judgment in Kennedy v The Charity Commission [2014] UKSC 20. The facts of Kennedy are well known and can be summarised in just a few words. A journalist had requested disclosure of documentation of the investigations into the Mariam Appeal founded by George Galloway MP by the Charity Commission under the Freedom of Information Act 2000 (‘FOIA’). The Charity Commission sought to rely on the absolute exemption contained in section 32(2) of the FOIA. The appellant claimed that this must be read down to comply with Article 10 ECHR, which the UKSC rejected. Richard Clayton QC’s recent post focuses on the key aspects of the ECtHR’s reasoning in Magyar Helsinki Bizottság. Other helpful contributions commenting on the original UKSC decision in Kennedy include those by David Mead (see ‘Freedom of Information: Exemptions’), Mark Elliott, Liz Fisher and an earlier post by Richard Clayton QC.

In this post I will focus on what the ECtHR’s judgment means for the development of common law constitutional rights, which can be defined as human rights found in domestic common law that individuals can rely on vis-à-vis the state and other individuals; examples include Moohan and another v The Lord Advocate [2014] UKSC 67 (principle of universal suffrage), Guardian News & Media Ltd v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (open justice), Beghal v Director of Public Prosecutions [2015] UKSC 49 (the privilege against self-incrimination) and Lee-Hirons v Secretary of State for Justice [2016] UKSC 46 (duty to give reasons and right to liberty). Se-shauna Wheatle and Roger Masterman have described the phenomenon of common law constitutional rights as follows:

‘There has been a flurry of common law activity in the United Kingdom’s apex court over the past decade. This activity began with a bang with the assertions in Jackson regarding the residual power of the courts to enforce the rule of law, and gained renewed steam in the reassertion of the relevance of common law rights in Osborn v Parole Board, Kennedy v Information Commissioner and A v BBC.’

This ‘flurry of common law activity’ is closely connected to the abandonment of the mirror principle in Nicklinson, which allows the courts to consider Strasbourg jurisprudence as the floor rather than the ceiling, thereby creating room for human rights protection in parallel to or beyond what the ECHR has to offer.

In Kennedy, the UKSC considered whether the Claimant’s request was protected by the ‘common law presumption in favour of openness’, which was said to underpin the Charities Act. The heavy reliance on the common law in this case in the context of an exclusively ECHR/HRA 1998 framed appeal exposes some of the constitutional challenges that arise under the concept of common law constitutional rights. In Kennedy, counsel for the Claimant had argued purely in terms of the FOIA regime and the HRA 1998, however the majority reasoned predominantly on the basis of the common law constitutional right of open justice. The leading judgments by Lord Mance and Lord Toulson suggested that this was not an Article 10 question, and that the relevant legislation, including the Charities Act 1993, should be interpreted in light of ‘the common law presumption in favour of openness’ based on the assumption that ‘the common law is fully capable of protecting sufficiently whatever rights under Article 10 Mr Kennedy may have’ (paragraphs 47 and 131). Since this line of reasoning had not been submitted by counsel however, the Claimant was, in this case, left with nothing, albeit the consolation that ‘it would be open to Mr Kennedy now to make a fresh request to the Charity Commission on the basis of this judgment’ (paragraph 151, per Lord Toulson). The government later used the identified gap between these two sources of law, i.e. the common law and the HRA 1998 and responded to Mr Kennedy’s application to the ECtHR saying that not all domestic remedies had been exhausted as he had failed to rely on his common law rights in the earlier stage of the proceedings.

The judgment in Kennedy is a bit of an odd one. It seems disjointed and slightly convoluted, and one goes away with a strong feeling of uncertainty as to whether anything has actually been decided. Other judgments may not be as easily ripped apart by the ECtHR. Nonetheless, the judgment in Magyar Helsinki Bizottság is a powerful reminder that under the current constitutional set-up, there is a higher instance in human rights questions that unsatisfied claimants can resort to, and that can ‘correct’ domestic interpretation of the ECHR. Against this recent reassertion of rights protection at the European level, two ways forward appear for the domestic judiciary.

Under the first one, the UKSC could derogate slightly from its current approach which focuses on autochthonous reasoning in areas in which the common law has been traditionally strong, and, as it has during the first ten years after the implementation of the ECHR into the domestic legal order, return to paying more attention to what the ECtHR would decide. In practice this would include paying closer attention to the Strasbourg jurisprudence. In Kennedy particularly it was unclear why it should, in light of the Strasbourg jurisprudence cited, not have been acceptable that the right of access to information was protected under Article 10 ECHR (as indeed Magyar Helsinki confirms). However, there are limits to this approach. As Richard Clayton QC points out, the ECtHR’s conclusion in Magyar depended strongly on the observation ‘that, since the Convention was adopted, the domestic laws of the overwhelming majority of Council of Europe Member States, along with the relevant international instruments, have evolved to the point of a broad consensus, in Europe (and beyond) on the need to recognise an individual right of access to State-held information so as to assist the public in forming opinions on matters of general interest’. It is doubtful whether the UKSC should and indeed can engage in such a comparative exercise.

The alternative, and more likely consequence of this judgment, is a more serious engagement with and the consequential bolstering of the common law. This would be in line with the wider phenomenon of UK constitutionalism being ‘on the march’ (see Lady Hale’s keynote address at the Constitutional and Administrative Law Bar Association Conference 2014), as well as with the current case law on the relationship between domestic law and Strasbourg jurisprudence. One key obstacle to this development is the gap between this relatively new autochthonous approach by the UKSC and the way in which the vast majority of cases are pleaded. As Lord Reed remarked recently at the 2016 Cambridge Public Law Conference in a conversation with Lord Chief Justice French, the UKSC is keen on pushing the common law in human rights. For this to happen effectively, they rely to a large extent on counsels’ submission to that effect. I see several hurdles here. Partially due to the lack of a theoretical framework of the concept of common law constitutional rights, partially due to the more established reasoning pattern under the HRA, and partially due to the wider availability of remedies under the latter, including monetary compensation, human rights cases are generally framed within the HRA context. Under the rules, the Supreme Court justices should not entertain arguments that have not been pleaded in the lower courts:

‘If either party is abandoning any point taken in the courts below, this should be made plain in their case. If they intend to apply in the course of the hearing for permission to introduce a new point not taken below, this should also be indicated in their case and the Registrar informed.’ (UKSC Practice Direction 6.3.3)

Then again, counsel have obviously picked up upon the UKSC’s renewed appetite for the development of the common law and it is expected that in the long run, they will facilitate a more thorough engagement with it, as it offers an additional source of protection for their clients. Already we see a slight change in approach as to how cases are pleaded, with the common law and the HRA 1998 being relied on as alternative arguments: see for example the recent PJS v News Group Newspapers Ltd [2016] UKSC 26. Furthermore, even where counsel have not raised a primary or additional argument based on the common law, the UKSC has, as in Kennedy, but also in subsequent cases such as R (on the application of Ingenious Media Holdings plc and another) v Commissioners for Her Majesty’s Revenue and Customs [2016] UKSC 54, developed powerful dicta, which are ultimately prone to persuade counsel to go down this route in future cases. Overall, we can therefore expect strong ‘correcting’ judgments by the ECtHR, such as Magyar Helsinki Bizottság, to push rather than limit the domestic development of the common law in human rights cases.

Christina Lienen is a PhD Candidate and Teaching Fellow at University College London.

(Suggested citation: C. Lienen, ‘When Strasbourg Won’t Have It – Push for or Limitation of Common Law Constitutional Rights?’, U.K. Const. L. Blog (10th Jan 2017) (available at