@sirjjkc.bsky.social highlights here what we can call the 'Policy Exchange fallacy': if 'common law rights and fundamental freedoms' [sic] provide equivalent protection to the ECHR ones, then what does repealing the latter achieve?
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aug 29, 2025, 10:38 am • 0 0 • view
What repealing the HRA and leaving the ECHR achieves is that it allows Parliament to enact laws that specifically contradict these rights. You could reintroduce the death penalty and impose discrimination against Catholics or Muslims for instance, and so long as the statute was specific and clear
aug 27, 2025, 8:53 am • 1 0 • view
enough, the courts would apply it, and there are very few "constitutional" protections to appeal to, certainly not the common law, which only really helps you in the absence of statute. That's why these people want this - Britain is helpless to protect itself against a Reform parliamentary majorly
aug 27, 2025, 8:53 am • 2 0 • view
It hasn't got the name European in it (sarcasm) They are so pathetic that the word is a trigger. Total madness.
aug 27, 2025, 8:33 am • 2 0 • view
If they can simply repeal the Human Rights Act, it shows the dangers of leaving an international treaty on Human Rights. If they don't like the Common Law, they can pass an Act of Parliament to overturn it. That's the point. And if you say, "but they won't", you haven't been paying attention!
aug 29, 2025, 1:55 pm • 2 0 • view
The other aspect of this is that repelling the HRA on its own won't turn the Common Law clock back to 1999. I'd be surprised if the courts didn't now find the Common Law protected some of these rights far more explicitly than they did in the 1990s because it has developed so much since.
aug 26, 2025, 9:02 pm • 11 1 • view
which makes the fallacy even more fallacious, if possible
aug 26, 2025, 9:03 pm • 3 0 • view
The only sensible way to do it would be to replace it with something else. But that would require telling the courts how things are supposed to work which is basically the impossible legal question.
aug 26, 2025, 9:05 pm • 3 1 • view
The answer to the paradox is, I think, that the JPP/Policy Exchange idea of “common law rights” is “rights that Lord Denning would have recognised”: property; a particular conception of free speech; not an enormous amount else.
aug 27, 2025, 8:44 am • 4 0 • view
But then 'common law rights' are clearly not able to provide equivalent protection to ECHR ones; which confirms that the Policy Exchange project is a reactionary one, as they argue for the most significant curtailment of the the rights of all citizens in the UK ever happened
aug 27, 2025, 8:54 am • 9 1 • view
Well, quite.
aug 27, 2025, 9:20 am • 3 0 • view
Certainly wouldn’t have included the Presumption Of Innocence, even if that inconveniences the police and security services.
aug 27, 2025, 9:58 am • 1 0 • view
I always used the Harry Hook Barnsley case when training Councillors destined to sit on licensing & similar regulatory committees, not just because it usefully illustrated the importance of hearings being conducted fairly but also to show the doctrine of proportionality in action.
aug 27, 2025, 3:17 pm • 2 0 • view
Very good point. Thanks.
aug 27, 2025, 5:51 pm • 3 0 • view
Also, being common law, easier to override by statute.
aug 27, 2025, 9:04 am • 4 0 • view
It would be a curious form of Originalism. Especially since there might be a lively debate of whether it is the Lord Denning of the the 60s, 70s or 80s which should be the baseline. (I'm hoping it wouldn't be the Denning of the 90s as his views hardened even further...)
aug 27, 2025, 10:34 am • 1 0 • view
I’m afraid I think this is an enormous straw man. Insofar as there is a single “Policy Exchange position” on this, it is not that the common law would in any way substitute for what the HRA currently does.
aug 27, 2025, 11:20 am • 0 0 • view
I'm afraid that you are mistaken, and that's what Ekins & co (Foran, etc) have been saying for a while now. Thankfully the receipts are easily retrievable: unherd.com/newsroom/we-...
aug 27, 2025, 3:14 pm • 1 0 • view
Well, in fairness to Michael, he's a bit more explicit about the reactionary nature of the project (for instance here: papers.ssrn.com/sol3/papers....)
aug 27, 2025, 3:16 pm • 0 0 • view
Well, quite. Some of the proponents of “common good constitutionalism” - certainly Vermeule - are happy to accept the correct label of “reactionary” though they tend not to volunteer it. “Obscurantist” and “pre-Enlightenment” will also do, though that tends not to be at the front of their argument.
aug 27, 2025, 5:58 pm • 1 0 • view
But essentially the idea is to dump any element of the common law (at least public law) that can’t be traced back to the scholastics. And certainly any element of common public law that recognises the courts’ role in protecting democratic values (about which they are at best ambivalent).
aug 27, 2025, 6:01 pm • 1 0 • view
At its highest it would be that the principle of legality would act as a check on legislative control of rights. But the point of repeal would be to have a different, primary political, model of rights protection. I don’t think they are suggesting that wouldn’t make a difference.
aug 27, 2025, 11:24 am • 0 0 • view
A related point is that the common law (in conjunction with other constitutional developments) had on the whole managed to secure a greater measure of rights and freedoms for the individual than was the case on the continent etc until the 19th (and possibly 20th) century.
aug 27, 2025, 11:29 am • 0 0 • view
That's a fairytale so thoroughly debunked by now that I'm not sure how can anyone still put it out there and expect to be taken seriously
aug 27, 2025, 3:22 pm • 0 0 • view
But that was principally by subjecting the executive to the rule of law, imposing the ordinary law (and its specific claim rights) and judicial process upon it. Not by imposing general normative rights or by limiting legislative power.
aug 27, 2025, 11:29 am • 0 0 • view
What little I know about Lord Denning suggests that - even more than Thatcher - your idea of the man and his work says more about you than him (and he was - as you note - mutable).
aug 27, 2025, 10:44 am • 1 0 • view
That's an interesting point. Probably more so when it comes to Judges since there is often a split between their personal views, what they say in judgments & what they say in retirement.
aug 27, 2025, 12:59 pm • 0 0 • view
Also, whilst Denning obviously did hear cases which affected civil liberties (& also some crime), I think these sorts of issues were perhaps less prominent in his judgments than they would be in a modern Master of the Rolls' cases.
aug 27, 2025, 1:02 pm • 0 0 • view
Exactly. JPP are very keen on protecting rights of value to rich powerful white people. Other people, well, they’re not entitled to “rights” at all. A glance at the common law’s “protection” of trade union activity is most instructive
aug 28, 2025, 3:11 pm • 0 0 • view
Quite.
aug 28, 2025, 3:36 pm • 0 0 • view
Quite how you legislate to achieve that outcome is an interesting question that I hope will never need to be answered.
aug 27, 2025, 8:44 am • 3 0 • view
Yes I thought we were meant to be in favour of 'legislated rights' not an 'activist judiciary' using the common law.
aug 26, 2025, 9:09 pm • 2 0 • view
(To be honest I have some sympathy with the view that parliaments should legislate to protect rights more frequently. They leave too much to the courts.)
aug 26, 2025, 9:16 pm • 2 0 • view
The point is that 'legislated rights' and 'judicially protected rights, are not mutually exclusives options (despite how the usual suspects paint them to be), but rather complementary (in a healthy constitutional democracy)
aug 26, 2025, 9:18 pm • 3 0 • view
Common law rights are very different from the HRA. The ECHR concerns duties on the state to secure human goods for citizens. The common law did not (and does not) recognise special duties on the state of that kind. /1
aug 27, 2025, 3:37 pm • 0 0 • view
A simple illustration is whether the police are under any duty at common law to take care to catch criminals. No. But they owe exactly the same duties we all do not to injure you. /2
aug 27, 2025, 3:40 pm • 0 0 • view
The romantic notion that the ECHR (or the HRA) simply replicated all the duties that we already had at common law isn't true. The common law concerned and concerns rights against persons generally, not duties on states. /3
aug 27, 2025, 3:42 pm • 0 0 • view
As it happens, I agree with Waldron that the case for a wholly domestic human rights regime is very weak. Which is why I think leaving the ECHR and having a "British Bill of Rights" is the worst of all worlds. /ends
aug 27, 2025, 3:43 pm • 1 0 • view
This sort of thing was very much what the Supreme Court seemed to be getting at in the Rwanda judgment when it pointed to the breadth of the principle of non-refoulement, ie not just something prohibited by the Refugee Convention or ECHR
aug 27, 2025, 8:22 am • 2 0 • view