"European courts offensive to Britain, says top judge". Oh dear. That was the Times headline writer's attempt to make a story from the address by Lord Neuberger, President of the UK Supreme Court, delivering the Cambridge Freshfields Law Lecture this week.
In fairness, the report that follows indicates that the judge took a rather more nuanced – and neutral – approach to the question of whether or not UK law should prevail over that from Europe, be it the EU or the Court of Human Rights, in cases of conflict. But even it, I suggest, does not convey the whole essence of the speech, which is posted in full on the Supreme Court website.
Lord Neuberger's professed aim was, first, to try and put the arguments about the UK's membership of the two European institutions, the EU and the Council of Europe, in their historical and cultural contex; and secondly, "to address the notion that UK law, and in particular the common law, is being subjected to undesirable mainland European civilian law influences" from the two European courts.
His comment about "offensiveness" came at the end of a passage in which he contrasted the very different constitutional arrangements in the UK as compared with mainland European countries, given the absence of a written constitution here, coupled with the existence of parliamentary sovereignty (whether or not of significance, he avoids using the word "doctrine"). So, unlike mainland Europe, "Parliament can reverse a judicial decision with a statute, but the courts cannot overrule a statute through a judicial decision... This means that the idea of courts overruling decisions of the UK Parliament, as is substantially the effect of what the Strasbourg court and the Luxembourg court can do, is little short of offensive to our notions of constitutional propriety. All the more so, given that the courts concerned are not even British courts."
Hence it is the very notion of judges overruling Parliament that causes "offence", on Lord Neuberger's analysis; the fact that the courts that can in effect do so are European may heighten the sensation but is not the underlying cause of it. (And is overruling Parliament not what the House of Lords effectively did – also, of course, on the basis of EU law – in the Factortame litigation in 1989?)
So to say "European courts offensive to Britain" is taking at least two unwarranted shortcuts. More seriously, it gives the wrong impression that Lord Neuberger is coming out against the notion of the supremacy of EU law, or European human rights law, over UK law, something he is very careful to avoid doing. Indeed he acknowledges that we are in this position precisely because Parliament legislated for that to happen, and if there is a debate to be had it is about whether Parliament should now reverse those decisions.
An indication that the British way may not necessarily be best can be seen in Lord Neuberger's contrasting of the continental experience of the potential shortcomings of democratically elected parliaments (Hitler and Mussolini on the one hand and the spread of communism on the other), and with it the continent's more ready acceptance of judicial controls on the legislature, not to mention the EU and Council of Europe, with the fact the "no government of the UK has been brought down by violence for over three centuries".
This latter characteristic, he states, along with the absence of invasion since 1066, is "a matter of legitimate pride, but we should be very wary of self-congratulation... self-congratulation assists those who suggest that we are safe from tyranny or interference with our freedoms... Our independent and relatively trouble-free history makes most Britons almost blithely unconcerned about internal or external threats to the rule of law, as well as having a very clear national identity".
These commments, I suggest, are at least as worthy of highlighting in the context of the current debate over Europe, given that the demands that Parliament be freed from external restraints are most likely to arise over issues in relation to which it has been judicially determined to be going against the guarantees of the Human Rights Convention. A parliamentary majority does not – cannot – justify infringing basic rights of unpopular minorities.
It is to be noted that Lord Neuberger observes: "Most countries accept the notion that there are times when it is a good thing for the rule of law that independent judges, who do not need to court short term popularity or worry about re-election, should be able to act as a control on what would otherwise be an unbridled legislature."
The President's lecture brings out well the historical, and geographical, influences that have shaped British attitudes to Europe, and we should not underestimate their continuing effect in shaping the debate. But he also has some interestng observations of the development of, in particular, English law, and how, although it has a very different outlook from the continental civilian systems, the "incoming tide" of European law referred to by Lord Denning "is no more than the latest inflowing of waters which have already left rich deposits on the flood plains of English law".
Perhaps of particular interest to Scots lawyers is the recognition, from the perspective of English law, that "Studying judgments of the CJEU and the ECtHR has led to the courts of this country taking a more principled approach to decision-making than in the past." To which Lord Neuberger added: "This is scarcely surprising: as I have already mentioned, the common law has tended to be pragmatic and therefore very ready to incorporate good ideas from other systems."
His conclusion, that although there are reasons why the British feel they are different from mainland Europe, "it cannot, I think, be confidently suggested that they justify any particular outcome for the present debate", should encourage us to take a forward-looking rather than historic approach to the issue. As the President also acknowledges, this country is "capable of radically changing its culture in a few decades".
Remember that there have also been recent headlines to the effect: "British politicians offensive to Europe". It is high time we shook off the "them and us" mentality. There is no future in it.