To what extent do UK courts have freedom to articulate and to develop human rights law?

Human rights law in the UK principally consists of Articles 1-18 of the European Convention on Human Rights (“ECHR”), implemented into domestic law through the Human Rights Act (“HRA”) 1998. However, issues regarding human rights and, more importantly, what constitutes as a fundamental right UK and how far such rights may be violated for certain supervening purposes, has been considered in the courts long before the enactment of HRA. Although it may be argued that the judges’ citing the prior protections of certain rights through common law is more of a tactic to preserve the reputation of the judiciary as an effective defender of legal principles against the threat of European law and the European Court of Human Rights (“ECtHR”), the UK courts have indeed gone some way to, if not defend, define and assign a special ‘constitutional’ status to certain rights.Some commentators are reluctant to acknowledge the “achievement of the courts in the defence of constitutional principles”, arguing that case law focussing on the common law protection of human rights before and after HRA has been exaggerated in effectiveness and inconsistent in application. Nonetheless, 20th century case law did recognise several constitutional liberties, such as the right to life. Indeed, Daly is perhaps most significant because the breached constitutional right, that a person in custody may consult a solicitor, had already been recognised and protected by the UK courts in the earlier R v Samuel [1988] as, per Hodgson J, “one of the most important fundamental rights of a citizen”; this case therefore could exemplifies the power of the courts in not only identifying a fundamental right, but also facilitating its development and entrenchment within human rights law by protecting it through common law. However, it is submitted that, whilst the courts were successful in establishing the right to consult a solicitor as fundamental, the courts would not have been as successful in preserving it, if the same right had not been reaffirmed in the s 58(1) of Police and Criminal Evidence Act 1984, and if it were not combined in the Daly appellant’s claim with the Convention right to privacy as set out in art 8 of the ECHR, one of the articles permitted by HRA to have direct application in English law.