Master of the Rolls calls for more restraint from Strasbourg judges

The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.

At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that

will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles.

The enlightening and wide-ranging lecture repays careful reading. Lord Neuberger reminds us that the Court of First Instance, the Civil Service Tribunal, and the European Court of Justice, now merged into the Court of Justice for the European Union, are not the only European Courts. As Advocate-General Maduro highlighted in the case of Cartesio Oktató és Szolgáltató bt (a limited partnership) [2009] Ch 354:

The possibility for a lower court in any member state to interact directly with the Court of Justice is vital to the uniform interpretation and the effective application of Community law. It is also the instrument that makes of all national courts Community law courts.

So all member state courts, however humble, can determine matters of EU law, a state of affairs which in Lord Neuberger’s words “has important consequences.” He envisages a future where intermediate courts develop at Member State level, capable of deciding preliminary references and even substantive claims. Such a model – with national Supreme Courts seized of such jurisdiction – would mirror the US Federal Court structure.

As a prelude to his discussion about the Human Rights Act debate, Lord Neuberger points up a number of important freedoms that have been built into the common law and the unwritten constitution long before the European Convention was drafted or even thought of.

  1. Right to liberty: Entick v Carrington (1765)
  2. Prohibition on retrospective liability: Philips v Eyre (1870) 6 QB 1 (see our recent post on this principle)
  3. Prohibition of torture has long been a “constitutional principle”, according to Lord Bingham in A & Others v Secretary of State for the Home Department [2006] 2 AC 221
  4. The right to fair trail, defined in the Magna Carter as “due process of the law” (Chapter 29 of the 1354 version although in fact the guarantee dates back to 1297)

So, Lord Neuberger observes laconically,

it is unsurprising that the United Kingdom played such a key role in drafting the European Convention

These references are not lightly made: they lead on to an expression of disquiet about the way the Strasbourg Court operates.  This is not about Euro-high handedness – so often fastened on to by the press – as the more basic matter of juristic research.

It has already been pointed out by academic commentators that the Court occupies itself less often than it should with the working background to the Convention. This reluctance to refer to the travaux preparatoires when the Strasbourg judges are divining the supposed “true meanings” of the Convention provisions is the source of some anxiety, hints Lord Neuberger. Too much is made of the notion that the Convention is a “living document” – some would say this is a Trojan horse for judicial activism, giving Strasbourg judges the liberty to find what they want to find in the interstices of Convention rights. It would do well to remind itself more often that this particular piece of legislation is not unique among legal instruments – the Convention

is as much a product of its history as everything else

The speech contains detailed reference to the drafting history, for example, of the right to fair trial under Article 6. This is not the exclusive domain of academics and historians, and Lord Neuberger defends himself against any charge of “originalism”. But the exercise of determining the meaning of a provision by diligent attention to its history, whether it be in a humble piece of subordinate national legislation, or a lofty agreement between nations, is the very thing that gives the adjudication its authority,  because that is where transparency lies. It prevents judges, national or international, finding that words, in Humpty Dumpty terms, mean what they like to think they mean.

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