Following a period of relative dormancy, the UK Supreme Court has revitalised the notion that the common law might provide effective protection for human rights. In Osborn v Parole Board, Kennedy v Information Commissioner and A v BBC the Supreme Court has provided support for the suggestion that the common law — and not the jurisprudence of the European Court of Human Rights — should be the primary source of legal authority for a domestic court considering an issue of individual rights. This piece traces this resurgence of common law rights reasoning, and assesses the nature of the primacy it seeks to accord to the common law.

A Common Law Resurgence in Rights Protection

This chapter outlines the approach to deference that Hong Kong courts adopt, evaluates whether such approach is justified, and proposes an approach that should be adopted in light of Hong Kong’s unique constitutional and institutional landscape.

A Principled Approach to Judicial Deference for Hong Kong

M v British Broadcasting Corporation

ONE way in which governments may exercise political control over their subjects is by removing their status as citizens. Doing so – denying the individual the political and social rights that are constitutive of full membership of their community – involves making a radical choice, and accordingly such a decision must be properly regulated. One of the ways in which UK law does so is by preventing the exercise of the broad statutory power to rescind the citizenship of a UK national because it is “conducive to the public good”, where doing so would render that person stateless (British Nationality Act 1981, s. 40(2), (4)). Individuals may only be stripped of their citizenship under this provision on the condition that they remain full members of another political community.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0008197316000052

Stumbling towards the constitution

1. There have been lots of exciting things going on in the courts recently for constitutional lawyers regarding fundamental rights. This article outlines the recent changes and argues that there is as yet no certainty that a repeal of the Human Rights Act (HRA) will make no difference. It gives suggestions for what may be done now to try to enhance the protection of fundamental rights by the common law and to safeguard your cases from the potential repeal of the HRA.

Future Proofing: Running Human Rights Arguments under the Common Law

QT v Director of Immigration is the most important decision on gay rights in Hong Kong since the unequal ages of consent between heterosexuals and homosexuals were held to be unconstitutional 10 years ago. The Court of Appeal of Hong Kong affirmed the right of same‐sex couples married or in a civil partnership overseas to be treated on an equal basis with married heterosexual couples. This note considers the strengths and shortcomings of the Court of Appeal's reasoning, in terms of its potential significance both to the rights of sexual minorities and to the wider protection of human rights by means of the common law.

An Incomplete Victory: The Implications of QT v Director of Immigration for the Protection of Gay Rights in Hong Kong

The Hong Kong Government issued a strongly‐worded official statement, subsequently adopted by the Chief Executive, to publicly condemn an outspoken constitutional law scholar for expressing views which the Government considered unconstitutional. Leave to judicially review the statement was refused by the Court of First Instance of the High Court of Hong Kong on the grounds, inter alia, that a statement lacking in direct legal consequences was outside the ambit of judicial review and, further, the Chief Executive was in any event entitled to comment on public affairs. This note argues that, on a proper understanding of the supervisory jurisdiction of the Court and the theory of the ‘third source’ of governmental power, neither ground should have precluded judicial review.

Kai Yeung Wong

Papers

An Incomplete Victory: The Implications of QT v Director of Immigration for the Protection of Gay Rights in Hong Kong

Kwok Cheuk Kin v Lam Cheng Yuet Ngor: Government Chastisement of Dissidents and Judicial Review That Never Was?