The Common Law and the Litigation of Fundamental Rights and Freedoms Before the Privy Council
| Author | Margaret Demerieux |
| Pages | 179-198 |
The Common Law and the Litigation
of Fundamental Rights and Freedoms
Before the Privy Council
Margaret Demerieux1
1. Setting for the Adjudication
In keeping with post-war constitution-making throughout the world,
Commonwealth Caribbean Constitutions all contain a Bill of Rights as a
chapter headed ‘Fundamental Rights and Freedoms.’2 The proclamation
of these Bills was a declaration that certain values and concepts were
the basis of the constitutional order and also of the relation between the
individual and t he state. The provisions of the Bills of Rights were both
statements of enforceable rights in law, and statements of constitution al
norms. The Bills in all cases save that of Trinidad and Tobago, are
derived from the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR). It fell therefore to the P rivy
Council, from the promulgation in 1962 of the constitutions of Jamaica
and Trinidad and Tobago, to interpret the Bills and determine their law
and their application – to be the
of Bills of Rights newly set into a long established common law syst em.
This task, crucially, was set by the Privy Council well before the advent
in the United Kingdom of a supposed ‘common law of human rights.’3
This task arose too, before it was denied in the United Kingdom that
the common law conceptions of fundamental liberties operated to produce
merely residuary entitlements and before it was asserted that the common
law did not diverge either from the European Convention or from United
1. This chapter is published posthumously with the permission of the executor of the Demerieux
estate.
2.
constitution, occurred in the 1961 Constitution of Guyana, a pre-independence document. States
in Association with the United Kingdom, before achieving independence in the late 1970s and
1980s, had constitutions with Bills. Certain other states as, for example, The Bahamas before
independence, and currently dependencies of the United Kingdom, had or have had extended to
(ECHR).
3. See M. Hunt, Using Human Rights Law in English Courts (Hart Publishing, Oxford 1997),
especially chapter 5.
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Transitions in Caribbean Law
States Bill of Rights understandings, at least in relation to free speech.4
In addition, at the time of promulgation of the West Indian Bills of
Rights, international and regional human rights regimes were in their
infancy (as for the European system), or non-existent (as for the current
‘world system’ and the Inter-American regime). The United Kingdom
had permitted individual petitions under the ECHR in 1966, about one
case – DPP v Nasralla.5
What then was the response of that Court, one whose power to
with a Bill of Rights provision was undisputed? Up until the very end of
the period stated, a reaching for existing law and in particular the common
law (as the Privy Council determined it to be at the time of promulgation
of the constitutions), had been its dominant response. One moreover, with
the purpose to give a restricted content or effect to the right litigated . The
Court had consistently declined to admit the contribution of the Bill of
Rights to the law and constitution of Commonwealth Caribbean states.
While there had been the occasional ingenuous use of the comm on law to
support a litigant’s view of his entitlement under the Constitution, the
Court had not accepted what should logically have been the presumed
premise of the ‘enactment’ of a Bill of Rights, namely that the freedoms
of the common law were not automatically to be seen as coextensive with
the newly stated fundamental rights and freedoms.
of certain liberties also made newer perspectives on the rights and
6
An observation made in 1990, in the context of the United Kingdom,
the 1960s when it began adjudication of the Bills: ‘The common law, in its
concern with remedies adopts a very technical approach to fundamental
4. See the observation of Lord Goff in AG v Guardian Newspapers No 2 [1990] 1 AC 109 (HL)
(‘Spycatcher No 2’) at 283, cited in the text to note 39. Derbyshire CC v Times Newspapers [1993]
AC 534 (HL) declared the similarity of the common law of England to that of the regimes mentioned
in the text. One strongly suspects that these developments, and certainly the decisions in Derbyshire
and Spycatcher No 2, were a response to litigation against the United Kingdom under the ECHR –
especially that in Sunday Times v United Kingdom (A/30) (1979–80) 2 EHRR 245 (ECtHR), which
infringement of Article 10 of the ECHR. The latter decision is the ‘classical locat ion’ of the traditional
common law’s response to an assertion of free speech in the way it approaches the restraint on what
is not a fundamental right. The restraint in that case was the common law of contempt.
5. [1967] 2 AC 238 (PC Ja).
6. More recently, in AG v Williams [1998] AC 351 (PC Ja) 354–55, the Court stated: ‘The fundamental
human right to protection against unlawful searches and seizure is part of the English common
law. … From the common law this right passed into the Fourth Amendment to the Constitution of
the United States and into the constitutions of the countries throughout the world.’
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