Journal Article

Beyond the European Convention: Human Rights and the Common Law

Mark Elliott

in Current Legal Problems

Volume 68, issue 1, pages 85-117
Published in print January 2015 | ISSN: 0070-1998
Published online August 2015 | e-ISSN: 2044-8422 | DOI: https://dx.doi.org/10.1093/clp/cuv009
Beyond the European Convention: Human Rights and the Common Law

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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 characterized. 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.

Journal Article.  13675 words. 

Subjects: Law ; Jurisprudence and Philosophy of Law ; Law and Society ; Politics and Law

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