Protection of human rights by the common law

Although there is no doubt that the common law is capable of protecting human rights, there is equally no doubt that it cannot be relied upon to do so, as the following three cases will show.

The first case is R v Lord Chancellor ex parte Witham [1998] QB 575, where the Lord Chancellor (acting with the concurrence of the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division) had exercised a statutory power to increase court fees quite substantially, and to remove an exemption from fees for people on income support. Even though the new rules contained a power for the Lord Chancellor to reduce or remit the fees in individual cases on the ground of undue financial hardship, the High Court granted a declaration that he had exceeded his statutory powers. The basis of this decision was simply that the effect of the increases would be to exclude many people from access to the courts.

The second case is Malone v Metropolitan Police Commissioner (No 2) [1979] Ch 344, where a man who had been convicted of handling stolen goods complained that the police had tapped his telephone during their investigation. Sir Robert Megarry V-C held that the telephone tap had been lawful because the law did not restrict this kind of activity by the police. Although he could have done so, he was unwilling to find that Malone had a right not to have his telephone tapped, simply so that he could then hold that that right had been infringed. The creation of such rights, according to the judge, is a matter for Parliament, not the courts.

The third case, R v Secretary of State for Social Security ex parte B and Another [1997] 1 WLR 275, shows that the judges may disagree among themselves on matters of human rights even within a single case. The Secretary of State had made certain regulations under the Social Security (Contributions and Benefits) Act 1992. The content of the regulations was such that some asylum seekers, who would previously have been eligible for benefits while their applications for asylum were being assessed, would, in the words of Simon Brown LJ (at p. 292), be reduced to ‘a life so destitute that to my mind no civilised nation can tolerate it’. However, Neill LJ dissented, on the basis that the regulations had been aimed primarily at, and would principally affect, people who were not genuine asylum-seekers. Furthermore, although the regulations would ‘also have a very serious effect on a considerable number of genuine asylum-seekers and those who might be hoping to obtain exceptional leave to remain’, the Secretary of State had not crossed ‘the threshold of illegality’, bearing in mind not only the ‘objects to be achieved by the legislation and its results’ but also the need ‘to strike a balance’ in ‘the allocation of the resources made available to him’. (See p. 283 of the law report.)