Introduction

At the 25th Anniversary Conference of the Human Rights Act, Lord Briggs of Westbourne delivered a lecture that quietly advanced a vision of what a post-HRA constitutional framework might look like. Delivered at a moment when political discussion of withdrawal from the European Convention on Human Rights has gained real momentum, the speech did more than merely commemorate the Human Rights Act 1998 (HRA). Titled, ‘25 Years of the Human Rights Act Protecting Human Rights: The Common Law as the Starting Point’, the analysis aimed to celebrate the Act and positioned the common law at the centre of domestic rights protection.

Briggs himself emphasised, echoing Lord Reed in Osborn v Parole Board [2013] UKSC 61 [57], that “the importance of the Act is unquestionable.” Yet, he argued, that recognition must be placed in its proper context:

when one considers the available modes for securing the protection of human rights in UK domestic law, the starting point must remain the common law, not the Convention articles themselves.

Where much commentary on the possible repeal of the HRA emphasises the risks, Lord Briggs offered an alternative vision, one in which twenty-five years of human-rights adjudication have been absorbed into the bloodstream of the common law, leaving it resilient, sophisticated, and capable of upholding fundamental values without reliance on the scaffolding of Convention rights. The purpose of this blog post is to analyse the doctrinal and constitutional implications of Lord Briggs’ account, and to suggest that while his optimism is legally well-founded, the United Kingdom should not willingly place itself in the scenario he contemplates.

The Common Law as the True Starting Point

Lord Briggs’ core claim is deceptively simple: when seeking to vindicate rights in UK domestic law, the starting point is, and always has been, the common law. He captured the point succinctly:

it is the common law which usually provides the cause of action, even if the Act is there to ensure that those causes of action are Convention compliant

In making this claim, Lord Briggs drew expressly on judicial authority, noting, as he and Lord Reed stated in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15 [87], that “domestic causes of action are the means by which compliance with Convention rights… is normally secured.”

The same approach animated early HRA-era cases such as R v Secretary of State for the Home Department, ex p Daly [2001] UKHL 26 [2], where Lord Bingham held that the prisoner’s rights of access to the courts, access to legal advice, and the confidentiality of privileged correspondence were grounded “in a basic right recognised both at common law and under the Convention.” These rights were not dependent on the HRA for their conceptual foundation; the Act merely provided an additional lens for evaluating their protection. Crucially, Daly also marked the moment when the House of Lords acknowledged that proportionality, derived from Article 8 but was increasingly absorbed into domestic law, operating as a more structured and rigorous standard than the Wednesbury unreasonableness test. This development illustrates precisely the dynamic Briggs identifies: Convention principles stimulating but not displacing common-law reasoning.

Lord Briggs argued that the HRA didn’t replace or marginalise the common law but stimulated it. Just as Roman law revitalised medieval English law, the Convention expanded doctrine, refined techniques, and developed principles latent in the common law. While the Convention can be withdrawn, the doctrinal habits, interpretive methods, and principles from twenty-five years of Convention-based adjudication are embedded in the common law and persist beyond the HRA.

Privacy as Proof of the Common Law’s Adaptive Strength

Lord Briggs uses privacy law as the clearest example of his thesis. Before the HRA, cases like Kaye v Robertson [1991] FSR 62 revealed significant gaps, with courts recognising the shortcomings of domestic protection but lacking the legal framework to address them. The HRA provided the stimulus for doctrinal transformation, but crucially, that transformation occurred through the development of common-law principles rather than direct enforcement of the Convention. In Campbell v MGN Ltd [2004] UKHL 22, the House of Lords recast breach of confidence as the tort of misuse of private information, freeing it from relational constraints. The “reasonable expectation of privacy” test, though tracking the logic of Article 8 ECHR, is unmistakably a domestic creation. The balancing of privacy against freedom of expression adopts the language of proportionality but is now firmly embedded in English private law. Privacy law, therefore, functions as a test case for the deeper dynamic at work, which is the common law’s ability to internalise new rights-based reasoning. The next question is whether this dynamic extends beyond private law and into broader constitutional methods.

The Naturalisation of Proportionality

A similar trajectory is visible in the development of proportionality. A generation ago, proportionality was widely regarded as an alien European transplant, conceptually distinct from traditional English standards of review. Today, following cases such as Daly and Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, together with a growing body of administrative and private-law jurisprudence, proportionality has become an accepted evaluative method in settings far removed from its Convention origins.

However, this process of domestic absorption has limits, which Lord Briggs himself emphasised. The Supreme Court in Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 made clear that proportionality has not become a general standard of review in public law, nor has it displaced Wednesbury irrationality as the default test. Concerns about unduly drawing courts into the merits of administrative decision-making continue to restrain any broader migration of proportionality into the core of judicial review.

What proportionality reflects, then, is not a wholesale transformation of English public law, but the emergence of a structured, trans-substantive mode of reasoning that the common law has been willing to adopt where suitable. Recognising both its reach and its limits is essential before turning to those areas where Convention rights have intersected with some of the common law’s most deeply entrenched principles.

Lessons From Land Law

Lord Briggs did not explore it, but the land-law jurisprudence of the past two decades provides a revealing companion to his thesis. Nowhere is the court’s capacity to absorb Convention rights into a common-law structure more severely tested than in possession proceedings. Beginning with Connors v United Kingdom (2004) 40 EHRR 9, Strasbourg made clear that eviction, even of someone without a domestic entitlement, engages Article 8 and requires a forum capable of assessing proportionality. This contrasted sharply with Qazi v Harrow LBC [2003] UKHL 43, where an unqualified proprietary right effectively foreclosed any proportionality analysis. Kay v Lambeth LBC; Leeds CC v Price [2006] UKHL 10 attempted a compromise through two narrow “gateways”: (a) challenges to the statutory scheme itself, and (b) traditional public-law review of the decision to seek possession. Crucially, Kay rejected any requirement that the County Court itself undertake a proportionality assessment.

Doherty v Birmingham CC [2008] UKHL 57 exposed the fragility of the Kay framework. The House of Lords struggled to confine gateway (b) to classic Wednesbury review: Lord Hope acknowledged that [55] “it would be unduly formalistic” to do so, and accepted that factors such as long occupation might prompt a more substantive inquiry. Lord Scott suggested that personal circumstances could be relevant. At the same time, Lord Mance doubted that s.6(2)(b) HRA insulated local-authority decisions from Convention obligations and insisted that decisions “to give notice to quit” were open to Convention-based challenge. Doherty thus revealed an emerging proportionality analysis beneath the formal adherence to Kay. McCann v United Kingdom (2008) 47 EHRR 40 made the tension explicit, holding that judicial review, central to the Kay/Doherty architecture, was procedurally incapable of assessing proportionality. By Mullen v Salford CC [2010] EWCA Civ 336, the Court of Appeal openly recognised the incoherence of the existing framework and deferred to the Supreme Court for resolution.

What emerges from this line of authority is a judicial approach shaped by structural constraints. The courts were clearly unwilling to allow Article 8 to become a free-standing merits review that would undermine the integrity of statutory housing schemes or destabilise long-standing proprietary expectations. Yet they were equally troubled, sometimes explicitly, sometimes tacitly, by the injustice of a framework that allowed the most severe interference with a person’s home without any venue capable of assessing proportionality on the facts. The jurisprudence becomes, in effect, a record of judicial discomfort being managed through incremental doctrinal manoeuvres.

It is against this backdrop that Manchester City Council v Pinnock [2010] UKSC 45 must be understood. Rather than simply adopting proportionality as a Convention requirement, the Supreme Court undertook a more ambitious constitutional reconstruction: it held that the County Court must have power to assess proportionality as a matter of domestic legality. As the Court stated:

Where … a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and … to resolve any relevant dispute of fact [49].

This was not a minor procedural adjustment but a decisive response to the fractures exposed by Doherty and the procedural critique in McCann. It required reimagining the County Court’s jurisdiction, from a forum confined to summary determination into one equipped to resolve factual disputes and conduct a structured proportionality analysis. The legal significance is unmistakable: proportionality is no longer a grudging concession to Strasbourg but a principle internalised into the domestic legality of eviction. Lord Neuberger’s insistence that “the traditional review powers of the court should be expanded” ([74]) crystallises this move. A domain traditionally defined by rigid formalism and strong deference to proprietary entitlements now contains a judicially crafted constitutional safeguard.

The land-law experience shows not only that the common law can absorb Convention ideas, but that it can do so in the legal areas least susceptible to change. The trajectory from Qazi to Pinnock reflects courts navigating a path between property law’s structural commitments and Article 8’s procedural demands. The resulting model of rights adjudication is cautious, incremental, and procedurally focused. Possession cases thus reinforce Briggs’s thesis: the common law can domesticate Convention principles even where its own architecture most resists adaptation.

A Post-ECHR Rights Landscape:

From these demonstrations of the common law’s capacity to absorb and domesticate Convention rights emerges Lord Briggs’s most ambitious claim: that twenty-five years of Convention-influenced jurisprudence has become so deeply internalised that neither repeal of the HRA nor withdrawal from the ECHR could, without further and specific legislative intervention, unravel them. As he puts it, even a profound constitutional rupture:

“could not without much more specific legislation possibly unravel the accumulation of principles and practical experience derived from 25 years of protecting human rights under the Act which the common law has already absorbed into its armoury.”

The common law now contains doctrinal forms that did not exist prior to 1998—robust privacy protections (Campbell), proportionality-infused review (Daly), and enhanced procedural fairness in areas such as possession proceedings (Pinnock). These developments reflect domestically generated reasoning rather than mere compliance with Strasbourg jurisprudence.

However, as Mark Elliott cautions, Briggs’ optimism risks overstating the autonomy and resilience of this common-law edifice. The common law has historically been “substantially narrower than the range of Convention rights,” and its capacity to maintain equivalent protections once external international obligations fall away is uncertain.

This concern intensifies when one considers the current direction of government policy. The government’s Restoring Order and Control policy paper offers a clear example of the current statutory trend against which Briggs’ argument must be examined. The document suggests the aim is to “rebalance” Article 8 of the ECHR within domestic law, narrowing the scope of “family life” or adjusting how courts weigh individual rights in immigration cases, and aims to limit the domestic impact of Article 3 case law. These proposals show not only the possibility but also the political likelihood of Parliament acting directly to restrict rights. The question then is: if Parliament is willing to legislate so openly to restrict Convention-based rights, why would it not do the same for common-law rights in a post-ECHR environment?

Lord Briggs’ answer lies in the structure and scope of the common law itself. While he readily acknowledges that the HRA provides uniquely powerful safeguards, most notably section 3’s duty of rights-compatible interpretation and section 4’s mechanism for declarations of incompatibility, he maintains that even without these statutory tools, the common law offers a meaningful, if less radical, form of rights protection through the principle of legality. Over the past twenty-five years, Convention-inspired developments in privacy, proportionality, and procedural fairness have, as Briggs notes, been “absorbed by common law by virtue of their incorporation into the relevant legal test”, such that individuals now “seek to enlist the assistance of the common law” rather than rely directly on the Convention. Since the principle of legality means that Parliament may derogate from “fundamental rights at common law” only through “express language or necessary implication”, the expansion of those rights correspondingly enlarges the range of interests that attract heightened interpretative protection.

Modern common law broadens the practical scope of legality: restricting rights remains possible, but only openly and with political accountability. Even after the ECHR, courts could still protect privacy, autonomy, expression, and procedural fairness, and Parliament would have to legislate transparently to limit them; such erosion can no longer occur covertly.

Conclusion

Lord Briggs’s lecture is a bold and important constitutional argument. After a quarter-century of symbiosis with the ECHR, the UK’s legal orders are no longer what they once were. The HRA has left an indelible imprint on the methods, vocabulary, and normative commitments of the common law, and that imprint will not vanish with legislative repeal.

Normatively, Lord Briggs is broadly correct that a substantial body of rights-protecting doctrine would endure outside the Convention framework: the architecture of modern common-law rights, from misuse of private information to proportionality-infused public-law review, no longer depends on Strasbourg supervision and would not simply vanish upon repeal of the HRA. Yet the second-order protections supplied by the Act, most notably the section 3 interpretive obligation and the section 4 declaration mechanism, would disappear, removing the statutory structures that discipline Parliament and fortify rights against erosion. And while the common law could survive such a constitutional shock, this resilience is itself the product of sustained interaction with the HRA and Strasbourg jurisprudence; the Act has sharpened legal method, expanded the vocabulary of rights, and accelerated the development of privacy, proportionality, and procedural fairness. To dismantle that framework would therefore be to remove an engine of doctrinal improvement, not merely a layer of external oversight.

For that reason, if Briggs’s lecture is read as the opening move in imagining a post-HRA constitutional settlement, it should equally be read as a call to the legal community—judges and lawyers alike—to defend the existing one. The common law may remain the starting point, but we should not allow it to become the endpoint when the tools that have enriched it are still available and worth preserving.

Alexander Baxter is a visiting lecturer in land law at City University of London, a Research Associate at the Erasmus Forum. He holds a MPhil in Intellectual History and Political Thought from the University of Cambridge, and is currently a BVS student

(Suggested citation: A. Baxter, ‘Common Law Post-ECHR: What Lord Briggs’ Anniversary Lecture Tells Us’, U.K. Const. L. Blog (9th December 2025) (available at https://ukconstitutionallaw.org/))