Skype Kids and the Price Elasticity of Demand: Constructing the Common Law Constitution

Abstract

In 2017, the Supreme Court held that it was unlawful to charge a British citizen earning £15,000 a year approximately £160 to bring a claim to an employment tribunal, but lawful to prevent their partner from living with them in the UK. This article analyses these two decisions in relation to the Common Law Constitution (CLC). It shows that there was a profound discrepancy in the judicial approach, with structurally different tests employed at sharply different intensities, despite the two cases raising similar legal issues and both plausibly involving interests which have been protected at common law. It is argued that the CLC is being used as guise to promote a distinctive ideology, focused on a set of court-centred norms. This article questions the constitutional legitimacy of this development, which privileges certain norms whilst marginalising others, especially those conducive to the interests of the poor and equal citizenship.

Keywords: public law; common law constitutional rights; protection of fundamental rights; family life; judicial partiality.