Beyond the European Convention: Human Rights and the Common Law

I gave a Current Legal Problems lecture in March concerning the relationship between common-law constitutional rights and the system of rights protection that obtains under the Human Rights Act 1998 and the European Convention on Human Rights. I have now finished work on the article version of the lecture. The full text of the article can be downloaded here, via SSRN.

The abstract of the article is as follows:

Since its entry into force in 2000, the Human Rights Act 1998 has become largely synonymous with human-rights adjudication in the UK. In particular, the notion of common-law constitutional rights was largely eclipsed by the new legislation. However, in recent years, against the background of political uncertainty concerning the future of the Act, the UK Supreme Court has begun to place renewed emphasis upon the common law as a source of fundamental rights and values. In the light of those phenomena, this article examines the potential of the common law as a vehicle for the enforcement of human rights. In particular, it compares the capacity of the common law with that of the Act by reference to three vectors by reference to which the nature of a judicial system of human-rights protection may be characterised. The three vectors respectively concern the normative reach of the system, the rigour with which it equips courts to uphold rights, and the degree of constitutional resilience that rights exhibit in the face of adverse legislative or administrative action. It is argued that these three aspects of human-rights adjudication sit in relationship with one another, and that it is only by considering the ways in which they interact that the nature and extent of the common law’s potential can be fully calibrated and assessed.