Bill of rights versus common law

A common practice that prevails in providing legal rights is through a charter or bill or rights. Constitutions of all countries that provide rights to its citizens do that through Charter or Bill of Rights. The Constitution of France, USA and India (Fundamental Rights) for example, provide declarations of rights of the citizens and individuals including some of the cultural, religious and minority groups.

However, we have one exception in the example of Britain. The British Constitution does not have a written Charter or Bill of Rights as it follows ‘common law’ rights.⁴² Here, rights are in the nature of ‘residual rights’ and are within the framework of Common law. This means, notwithstanding the absence of a written charter, so long as public authorities do not interfere with the individual, the individual has rights or can do everything that is not forbidden. Constitutional commentators, A. V. Dicey (Introduction to the Study of the Law of Constitution), William Blackstone (Commentaries on the Law of England) and recently, M. Fordham (Judicial Review Handbook) and T. Allan (Constitutional Rights and the Common Law: Law, Liberty and Justice) have sought to identify legal rights inherent in the common law.

With the enactment of the Human Rights Act, 1998 in UK, rights have been given a status of statutory rights. However, unlike the Bill of Rights of USA, the British Parliament is allowed to infringe the Act.⁴³ While advocates of legal rights demand provision of rights in the form of charter or bill of rights, the supporters of common law rights (such as A. V. Dicey, K. C. Wheare, Ivor Jennings, etc.) feel that it may not matter much.