I have been thinking a good deal recently — partly because I will soon be giving a Current Legal Problems lecture on the topic — about the relationship between common-law constitutional rights and rights enshrined in the ECHR and given domestic effect by the Human Rights Act 1998. A stream of recent Supreme Court decisions — including Osborn v Parole Board  UKSC 61, Kennedy v The Charity Commission  UKSC 20, R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3 and A v BBC  UKSC 25 — has placed new emphasis upon the common law as a source of fundamental rights and values, and it is hard to resist the supposition that the ground is thus being prepared for the possible repeal of the HRA and withdrawal from the ECHR, both of which possibilities are now explicitly contemplated by the Conservative Party.
Against this background, the risk arises of approaching the common law through rose-tinted spectacles: even of going so far as to suppose that if the HRA were repealed and the UK to withdraw from the Convention, not much would change because the common law would fill the resulting gap. There is some force in this argument: as the cases mentioned above remind us, the common law has not gone away — and nor, as Lord Reed pointed out in Osborn, has it necessarily remained static while the HRA and the Convention have been centre-stage. At the same time, however, it cannot simply be assumed that business as usual would continue in the absence of the HRA and the ECHR.