Defining Restraints on Fundamental Rightsand Freedoms: The Common Law
A major area of interaction between common law rules and fundamental rights and freedoms as enforceable legal claims is the setting of the restraints and limits on the formulated rights.[801] The fact that the setting of these limits can well be seen as the actual defining of the rights brings up the matter of the content of specific rights and especially those constituting freedoms known to the law before enactment as rights.
The issues, therefore, of limitations on rights and the defining content of these rights converge. The fundamental freedoms known to the common law have, no doubt due to the influence of Dicey, been seen as and indeed are residual in character.[802] This reflects the view that the content of a �liberty’ is �freedom’ — that which is left after the limitations on the liberty have been taken into account. Liberty of speech is apt for illustrative purposes as it is one of the more broadly stated freedoms. As a �residual freedom,’ the expression to which the individual was entitled would be such as was left after the application of the law relating, for example, to contempt of court, defamation, confidentiality, official secrecy and defence. These areas of law appear as limitations on stated rights in the constitutions of the Commonwealth Caribbean states with the exception of Trinidad and Tobago. At common law, the freedoms known to it do not constitute rights such as to require the state to justify �exceptions’ thereto. In broader theoretical terms and as Dicey puts it in relation to free speech, there did not exist in the common law �anything like that natural right to free communication of thoughts and opinions’ as in the French Declaration of the Rights of Man.[803]But in more recent times, the residual character of freedoms at common law has been denied thus:
[W]e in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.[804]
According to Lord Goff this approach was opposed to that under the ECHR in which a right was stated and then qualified.
It seems however, that under the ECHR and certainly as interpreted by its Court, there is under that Convention an actual right in the individual, albeit subsequently qualified; whilst at common law, free expression was the liberty to communicate matter not defamatory, not a threat to the defence of the realm, not a breach of confidence and not a contempt of court, amongst many other �nots.’ The liberty did not precede the setting of restraints on a freedom, but rather the restraining laws applied automatically, albeit not always in advance.The residual nature of common law freedoms is best illustrated in the case of AG v Times Newspapers[805] and especially in the judgment of Lord Simon of Glaisdale which comprehensively explained the way in which the common law has traditionally dealt with the tension between the public interest representing the �right’ on one hand and the restraint on the other. �Individual right’ does not appear in the judgment and the �interests’ dealt with were those in �freedom of discussion’ in a democratic society and in the �due administration of justice.’ The two interests, �which are apt to conflict, but should so far as possible be reconciled and otherwise be held in careful balance.’[806] The words quoted may well describe the task involved in interpreting the statement of rights in the West Indian Bills, which, save for one, follow the pattern provided in the ECHR, with a first subclause conferring a right and a second stating the restraints thereon. Lord Simon having stated his task in the words just quoted, describes the law of contempt repeatedly used the phrase �an objective code,’[807] undoubtedly to mean �the common law.’ The significance of this becomes apparent when, in getting to the point of balance, he declared that it could not be struck anew on a case to case basis since, �the law...and its application would tend to vary with the length of the particular judge’s foot.’[808] Here is a major explanation of recourse to the common law in the adjudication of enacted rights. The judge can point to a body of law, extant law, to negative the argument that she has decided on the basis of her personal beliefs, political views and so forth.
Such recourse may ultimately be used to refute the argument that human rights adjudication is premised on the predilections of the individual judge and is, therefore, undemocratic. What is then justified is not so much the actual restraint, but finding it as, and in a pre-existent objective code, the common law.In AG v Times Newspapers, the common law was used to strike the balance, or indeed it could well be said, constituted the balance between the two public interests in tension. If the common law is seen to establish this balance, then it is the case that the restraining law must apply automatically and that the adjudicating court will not look to ascertain whether and to what extent the restraint is needed in the particular case before it. Whenever the circumstances fall within the ambit of the rule it will be applied. In this way, the right, or in the terms used in Times Newspapers the interest in free speech, being argued for falls away. It is outweighed by the restraining law. This was a major concern of the European Human Rights Court in the Sunday Times litigation engendered by the House of Lords decision.[809] The House of Lords had asserted that �the paramount public interest pendente lite is that the legal proceeding should progress without interference.’[810] This interest was that supported by the law of contempt. And since this law as it relates to publications of the kind involved only operated pendente lite, the court was applying it without taking into account free expression.
The question of permissible restraint on an enacted right (the application of the rules of the law restraining an enacted right), was before the Privy Council in Francis v Chief of Police[811] [812] as the question as to the way in which the restraining second subclause of the freedom of expression right in the constitution of St Christopher-Nevis should be read. In this case, the restraining law was a piece of legislation. Lord Pearson asserted that there were two approaches. One was to read into the statement of right the restraints of the second subsection as inherent in the right concerned; the other was to take literally the conferment of the right in the first subsection and then to look to the second subsection to see whether the prima facie infringement was justified under it. It may be that this second mode of approach accords with the words of Lord Goff quoted earlier. In any event however, the question remained whether once the challenged law fell within a head of restraint stated in the second subsection, the alleged infringement of the right was �justified.’ The Privy Council in Francis appears to have decided, as the House of Lords was later to do in Times Newspapers, that this was indeed the case. In this way, the Privy Council could avoid an examination of the circumstances specific to the case and an assessment of the impact of the limiting law on the exercise of the freedom. This was the eschewing of the case by case striking of the balance, and �the application of an absolute rule [even] though it may seem to be unreasonable if one looks only to the particular case,’ as asserted in Times Newspapers.43 An approach which is the antithesis of Francis is to be found in the Privy Council decision in De Freitas v Benny.[813] 5.