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.

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.

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

Well, quite.

Certainly wouldn’t have included the Presumption Of Innocence, even if that inconveniences the police and security services.

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.

Very good point. Thanks.

Also, being common law, easier to override by statute.

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...)

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.

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-...

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....)

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.

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).

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.

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.

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

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.

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).

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.

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.

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

Quite.

Quite how you legislate to achieve that outcome is an interesting question that I hope will never need to be answered.