A Great Forgetting: Common Law, Natural Law, and The Human Rights Act 

Abstract

This chapter examines the transformative impact of the Human Rights Act 1998 on UK public law, highlighting a shift from common law rights, rooted in natural law principles, to Convention rights under the European Convention on Human Rights. While the Human Rights Act aimed to place Convention rights into a domestic UK context, it has overshadowed framework of common law rights, which are derived from concrete obligations and tailored to the UK’s distinct constitutional tradition. The perception that common law rights are inherently inadequate must be rejected, in favour of an account which recognised the historical grounding of common law rights within the classic natural law tradition, focused on concrete duties derived from more general principle. The Human Rights Act, by contrast, centers on broad value claims, necessitating extensive judicial interpretation through proportionality analysis, which often blurs the distinction between rights and interests. This shift has led to courts grappling with contested balancing exercises and presenting a challenge of legitimacy. The Human Rights Act fails to adequately tailor international standards to the UK's constitutional tradition, thereby requiring the judiciary to engage in a form of legal reasoning which is disconnected from common law doctrine and which, by virtue of its focus on speculative balancing of abstract interests, is unlikely to ever replicate the virtues of common law adjudication. 

Keywords: common law, natural law, human rights, separation of powers