In recent weeks the Blog has covered the latest events at which proponents of the UK’s Human Rights Act 1998 (including Dominic Grieve QC MP and Sir Keir Starmer QC) have argued against its repeal. In this post, Ian McDonald returns to the Blog to discuss Dinah Rose QC’s take on the matter, which raises the question of the ability of the common law to protect fundamental rights should the Human Rights Act be repealed.

As the intractable debate over the future of the Human Rights Act 1998 (HRA) rumbles on, common law rights are seemingly back in business. Several recent decisions—Osborn v Parole Board, for instance—have put such rights firmly centre stage. It’s as if a judicial ‘Plan B’ is being devised, in case the HRA is replaced with a ‘British Bill of Rights’ that weakens existing protections. But can common law rights really rise to the challenge in a post-HRA world? The answer, according to leading public law barrister Dinah Rose QC, is perhaps not as clear-cut as ‘Plan B’ proponents might hope.

Speaking to Lady Margaret Hall’s new principal, Alan Rusbridger, ahead of the College’s annual law society dinner on 28 November 2015, Ms Rose conceded that the HRA, while a ‘relative success’ in practice, has been a ‘public relations disaster’. “There have been a significant number of cases where it has made a real difference to the protection of vulnerable people,” she said, “But if you ask someone on the street, ‘what do human rights mean to you?’ They are likely to respond with [stories about the protection of] ‘terrorists and foreign criminals’,” as the Act has so far had a reputation for protecting only the ‘unmeritorious’.

Ms Rose highlighted, too, that this disconnect between perception and reality is not confined to the public. “Some judges do not like the Human Rights Act; they think it’s foreign and alien,” she said. “But they love the common law. So, if you can start to use common law principles as a source of civil liberties, that’s potentially very attractive.”

Furthermore, she added that there are some areas—including fair trials and property rights—where the common law provides greater protection than the European Convention on Human Rights (ECHR), which the HRA incorporates into domestic law. This can be a positive aspect. However, Ms Rose also identified compelling reasons why the HRA, or a similar legal instrument, was in fact necessary. Not only does it plug gaps in the common law (the right to privacy, for example, received no proper protection until Article 8 came along), it also provides a framework for enforcement. Thus the Act is essential, Ms Rose stressed, given the notion of absolute parliamentary sovereignty in Britain. “If Parliament can do whatever it likes, how do you protect fundamental rights?” she asked. “The Human Rights Act is a rather elegant attempt to solve that problem.”

How so? The HRA, as Ms Rose explained, is incredibly ‘measured’. Where legislation falls short of human rights standards, judges can only issue a ‘declaration of incompatibility’—leaving it for Parliament to decide how to respond. “What’s clever about the Human Rights Act is that it provides a mechanism for finding a political solution to what would otherwise be a constitutional impasse,” she added.

While Ms Rose argued that a new ‘British Bill of Rights’ could still be a positive move, she was highly critical of the Conservatives’ 2014 blueprint for rights reform—labelling it ‘embarrassing’, and full of ‘basic legal errors’. She warned that, if the Government does push ahead with something ‘foolish and extreme’, it could well fall to the courts to further develop common law principles in response.

There are two possible problems with such an approach though. First, as Dominic Grieve MP QC has said, it would make it harder to export British legal values internationally, as the ECHR does at present. Second, prior to the HRA’s introduction, there were signs that the common law, flexible as it is, was struggling to cope with an expansion of executive action and it remains liable to be overridden by statute at any time.

On this latter point, one is reminded of a question that Lord Lester QC put to Lord Judge during a discussion on this very issue last year. He asked: “Do you really think that the old common law, the law which wouldn’t strike down race discrimination, the law that wouldn’t treat women as persons… do you really think if we only had the common law and we didn’t have a [supranational] authority we would be strengthening or weakening the rights of minorities and individuals in this country?”

With all of the evidence suggesting that any new ‘British Bill of Rights’ will amount to something of a ‘Human Rights Act minus’, Lord Lester’s question must surely be answered by those who propose relying on the common law.