In a recent lecture, Supreme Court Justice Lord Briggs places renewed emphasis on the common law’s ability to protect human rights, and argues that we should not doubt its capaity to step in if the UK were to withdraw from the ECHR. In doing so, Lord Briggs paints a very positive picture of the common law’s potential. But is such optimism well-founded?
Reflecting on a conference marking the 75th anniversary of the European Convention on Human Rights (‘ECHR’), I recently wrote about possible trajectories of human rights protection in the United Kingdom, bearing in mind the growing momentum on the political right in support of withdrawal from the Convention. In that piece, I observed that if the UK were to withdraw from the ECHR — a step that would inevitably involve repealing the Human Rights Act 1998 (‘HRA’) as well — there would necessarily be renewed focus on the common law’s capacity to uphold fundamental rights. I went on to suggest that while the common law’s potential should not be underestimated, neither should it be overstated, bearing in mind that the compass of common law rights has traditionally been substantially narrower than the range of Convention rights, and given that common law rights, unmoored from the binding international obligations that the HRA puts in the domestic spotlight, would be more vulnerable to exercises of parliamentary sovereignty than, in practice, Convention rights are.
Against that background, I was interested to read Lord Briggs’s recent lecture, entitled ‘Protecting Human Rights: The Common Law as the Starting Point’. He revives a line of judicial thinking that came to particular prominence in the mid 2010s in cases including Osborn v Parole Board [2013] UKSC 61 and Kennedy v The Charity Commission [2014] UKSC 20, arguing that:
when one considers the available modes for securing the protection of human rights in UK domestic law, the starting point must remain the common law, not the Convention articles themselves. In short, it is the common law which usually provides the cause of action, even if the Act is there to ensure that those causes of action are Convention compliant.
Lord Briggs correctly notes that this approach, according to which common law rights are resorted to first with the ECHR playing a supporting role, can be traced as far back as R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 — as well as being reflected in recent cases, or at least dicta in recent cases, such as Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15, in which (at [87]), Lord Reed and Lord Briggs, in their joint judgment, said that ‘domestic causes of action are the means by which compliance with Convention rights…is normally secured’.
However, that claim notwithstanding, it is fair to say that this approach has not been adopted consistently, either by courts generally or by the Supreme Court in particular, with the common law often in practice taking a backseat in favour of the Convention. Because of that, it is not always easy to know what the position of the common law is relation to various rights: whether, for instance, the common law remains stuck as it was before the HRA entered into force, or whether it has evolved in the intervening decades, perhaps under the influence and absorbing something of the Convention. Lord Briggs’s lecture is illuminative in this regard too. Taking issue with my own claim that the normative reach of common law rights is more modest than that of the ECHR, Lord Briggs argues that ‘the common law in fact often affords the same (or sometimes even greater) protections’ than the Convention — hence his optimism about the common law’s capacity to fill any gaps arising from ECHR withdrawal.
Any claim that the common law, as it was before the HRA came into force, was capable of protecting the same (or a broader) range of rights than the ECHR is plainly unsustainable, as the late Conor Gearty’s book On Fantasy Island so vividly shows. Why, then, does Lord Briggs advance such an argument? His claim regarding the normative reach of the common law today appears to turn, at least in part, on the view — which I advanced in my Current Legal Problems lecture in 2015 — that the common law is capable of developing under the influence of the ECHR, albeit that such development might remain shrouded from view to the extent that the ECHR (judicial protestations to the contrary in cases like Abbasi) remains centre stage. On this view, although obscured to some extent by the ECHR, the common law has continued to develop over the last 25 years, including under the ECHR’s influence. The point is put in the following terms by Lord Briggs:
[I]t is precisely because the [HRA] has enriched the scope of human rights protections available at common law over the past 25 years that we should not be unduly fearful about the common law’s ability to cope if, for example, the UK were to repeal the HRA or abandon the Convention. Such actions could not without much more specific legislation possibly unravel the accumulation of principles and practical experience derived from 25 years of protecting human rights under the Act which the common law has already absorbed into its armoury.
This framing — in particular Lord Briggs’s explicit reference to the potential of the common law to fill any void created by the possible future repeal of the HRA and withdrawal from the ECHR — is striking. But the question remains whether the common law is really capable of fulfilling the potential Lord Briggs ascribes to it. That is a question that has dimensions that transcend questions about the normative reach of common law rights. Even if we were persuaded by Lord Briggs’s claim that the common law is (at least) the ECHR’s equal in that regard — perhaps because Convention rights (on this view) have become part of the common law through osmosis over the last quarter century — it does not follow that ECHR withdrawal and HRA repeal would make no difference to the protection of human rights in the UK. That a given right is recognised at common law is one thing; how, and to what extent, the common law can protect such a right is another matter.
Here, Lord Briggs prays in aid two principal arguments. First, he emphasises that the proportionality test — which is an important part of the courts’ arsenal when it comes to determining whether administrative decisions and legislative measures are compatible with qualified human rights — is now a firmly established feature of the common law, notwithstanding courts’ reluctance to embrace it pre-HRA. Generously endorsing my own work, Lord Briggs says:
As Professor Mark Elliott acknowledged writing in 2015, whereas around 25 years ago proportionality was considered by some to be ‘novel and dangerous,’ ‘the courts’ experience of proportionality review under the HRA has served to normalize and demythologize it in a way that sits uncomfortably with its characterization as a European import that would depart the UK’s shores in the course of a process of de-Europeanization.’ Indeed, he recognises astutely that proportionality has been applied in human rights cases decided at common law such as Daly, which evidences the capacity of the proportionality principle to operate legitimately as a common law tool quite outside of cases purely concerning Convention rights.
It is clear, then, that ECHR withdrawal and HRA repeal would not rid domestic law of proportionality, which would remain available to courts when adjudicating on the lawfulness of potential breaches of common law rights.
Second, however, there is the question of what courts can do in respect of common law rights if faced with primary legislation that appears to ride roughshod over them — and, in particular, whether the courts’ capacity to uphold common law rights in such circumstances matches their powers under the HRA, bearing in mind the implications of parliamentary sovereignty. Lord Briggs concedes that there are ‘some key differences in the relative strengths of common law and Convention rights’. While emphasising the interpretive potential of the principle of legality as a means of according a degree of protection to common law rights in the face of ostensibly incompatible legislation, he argues that section 3 of the HRA may require courts to go further than they can under the principle of legality and acknowledges that the judicial power to issue declarations of incompatibility under section 4 has no common law analogue. He concludes that the tools available to courts at common law enable them to afford relevant rights ‘a degree of protection, albeit one which is weaker than under the [HRA]’.
Unfortunately, Lord Briggs does not engage at all with a further key difference, to which I drew attention in a previous post, between the HRA regime and the common law: namely, that judicial remedies under the HRA are invested with much greater bite than they appear to have because of the way in which the HRA foregrounds in the domestic legal and political arenas obligations that are binding upon the UK in international law. For instance, if a court performs interpretive surgery on an Act of Parliament pursuant to its duty under section 3 of the HRA, Parliament, as a matter of domestic law, is free to (in effect) reverse what the court does by re-enacting the relevant provisions in terms so clear as to defy ECHR-compatible construction, section 3 of the HRA notwithstanding. The same is true if a court performs comparable interpretive surgery pursuant to the common law principle of legality. The crucial difference, however, Parliament is disincentivised to reverse HRA-derived judicial interpretation, because taking such a step would almost inevitably put the UK in breach of its obligations under the Convention and would risk a subsequent adverse judgment in Strasbourg. In this way, the parliamentary sovereignty-respecting HRA regime is underwritten by an international law-based system that has no truck with parliamentary sovereignty. The same cannot be true of the common law rights which, leaving aside occasional judicial dicta speculating about how courts might respond if Parliament did ‘the unthinkable’, must ultimately yield to the immovable obstacle presented by parliamentary sovereignty.
This is not to dismiss the value of Lord Briggs’s analysis. But it is important to recognise not only the limitations upon the common law (relative to the HRA) that he acknowledges but also those that he does not. Perhaps, however, the most significant point to emerge from Lord Briggs’s lecture is his willingness to place renewed focus on the common law and to emphasise its potential — including as a substitute for the existing ECHR-HRA regime whose days might be numbered. That might give some grounds for cautious optimism to those who fear the consequences of ECHR withdrawal, such as the potential hollowing out of judicial protection of rights thereafter. But it remains to be seen whether any such optimism is well-founded. Among other things, it will prove to be so only if the Supreme Court is prepared to exploit the common law’s potential that Lord Briggs identifies. About that, there must be at least considerable doubt, given the notably — and sometimes strikingly — cautious approach adopted by that court to human rights and public law matters in recent years.
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