A robust system for the protection of individual rights breathes life into abstract concepts like the rule of law and access to justice. Common law rights – those created and developed by judges – have been a divisive concept in the public law community, and in recent years the Supreme Court has reversed its willingness to develop them. But given the present risks to our legislative rights, judges must take common law rights seriously and the legal community must develop realistic strategies for their defence and advancement.

A series of decisions in the past decade marked a period of Supreme Court endorsement of common law constitutional rights and principles, including Osborn, Booth and Reilly v Parole Board [2013] UKSC 61; February 2014 Legal Action 20, Kennedy v Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and R (Unison) v Lord Chancellor [2017] UKSC 51.1See September 2017 Legal Action 8–9 and 39. Open justice, procedural fairness and the right of access to the courts were elevated to constitutional status. These developments were facilitated by a judicial methodology that gave precedence to the common law over external sources of rights, engaged in comparative rights analysis and prioritised the demands of the rule of law.

The retreat from this line of jurisprudence followed not long after the contentious outcome of the second Miller case (R (Miller) v Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41; December 2019/January 2020 Legal Action 40). In Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, the majority rejected Lord Kerr’s conclusion that it was ‘unlawful at common law’ for the state to provide mutual assistance where this would facilitate the imposition of the death penalty abroad (para 143). Although Lord Reed acknowledged the right to life as a common law constitutional right, Lord Kerr’s reasoning was said to run contrary to the incremental development of the common law. Soon after, in R (O) v Secretary of State for the Home Department; R (The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3, the Supreme Court rejected the opportunity to recognise citizenship as a fundamental status.

Not only has the Supreme Court declined to recognise additional common law rights, but it has also narrowed existing common law rights. In R (Begum) v Special Immigration Appeals Commission and Secretary of State for the Home Department [2021] UKSC 7,2See July/August 2021 Legal Action 18. the decision that the only solution to the impossibility of conducting a fair and effective trial in the absence of the claimant was a (potentially indefinite) stay of proceedings effectively laid waste to the idea of an irreducible core of procedural protection in national security cases.

Lord Reed’s conception of common law incrementalism appears to be at the heart of this pattern. In Elgizouli, Lord Reed described incrementalism as a by-product of parliamentary sovereignty: the common law must develop by building on ‘established principles … incrementally rather than making the more dramatic changes which are the prerogative of the legislature’ (para 170). This is a modern approach to incrementalism that does not reflect the historical underpinnings of the principle (or the approach to common law development adopted in private law).3Lord Hodge, ‘The scope of judicial law-making in the common law tradition’, speech at the Max Planck Institute of Comparative and International Private Law, Hamburg, Germany, 28 October 2019. In Lord Reid’s seminal 1972 speech, ‘The judge as law maker’ (Journal of the Society of Public Teachers of Law, vol 12 no 1, January 1972, page 22), priority was accorded to three adjudicative values that were deemed compatible with the institutional role of the court: common sense; legal principle; and public policy.

Lord Reed has expressed scepticism of the first and last of these values in favour of building on established legal principle; however, this raises the question of what has happened to the fundamental principle of the rule of law in the Supreme Court’s recent jurisprudence. Neither Elgizouli nor O nor Begum refer to that principle in the sense that it was used in Osborn, A and Unison. The only considerations of the rule of law that can be inferred from recent cases relate to the principle in its ‘formal’ conception, which elevates deference to parliament as the creator of primary law and emphasises legal certainty.

No explanation has been given about why the rule of law, understood in the common law rights cases as requiring the vindication of certain fundamental rights, has ceased to apply. In reversing course, this approach fails to uphold legal certainty and develop the law incrementally.

Combined with Human Rights Act reform, these developments put at risk the multi-layered network of rights protection enjoyed in the UK. We need a backstop for fundamental rights that does not rely on parliamentary or executive goodwill. The Supreme Court has refused opportunities to expand the scope of common law rights organically. If it continues to do so, a better justification will be required than incrementalism, and the legal community will need to redouble its efforts to both defend existing common law rights and extend their protection in future.