16. Common law rights are not co-extensive with Convention rights, which are supplemental to
common law rights and do not retrospectively apply to the conduct of the respondent agencies.
17. The Complainant cited authorities for the proposition that a general public law right to privacy
or the right to private life as a fundamental right or basic common law right which engages the
principle of legality in public law. the cases cited were: Simms; R( Daly) v Secretary of State
for the Home Department [2001] 2 AC 532, a case on freedom of expression, as regards
which right the English courts have held that there is no difference between the common law
position and the right in article 10 of the Convention; and R v. Chief Constable of North
Wales Police ex parte Thorpe [1999] QB 396 and R v. A Local Authority in the Midlands ex
parte LM[[2000] 1 FLR 612, both cases concerning challenges on Wednesbury grounds to the
official disclosure of information (e.g. by the police or by a local authority), of convictions in the
one case and of unproven allegations in the other, about the sexual abuse of children, in
which article 8 was referred to, but no mention was made in either case of a fundamental or
basic right of privacy in public law or of engagement with the principle of legality.
18. Indeed, there is authority against a general common law right to complain of
interception of communications: see Malone v. Metropolitan Police Commissioner [1979] 1
Ch 344, in which it was held that statutory authority was not required to carry out telephone
tapping. This led to the regime of statutory regulation established by the 1985 Act, after the
ruling of the Strasbourg Court in Malone, and continued by RIPA. The correctness of
Malone was not doubted by the House of Lords in their recent decision in Wainwright
v. Home Office [2004] 2 AC 406 at paras 26-31, in which it was confirmed that there is
no general common law right to privacy in private law. This is in contrast to the right to
free speech