The idea that European courts can overrule decisions of parliament is “little short of offensive to our notions of constitutional propriety”, the UK’s most senior judge has declared.
In a speech examining resentment of continental interference, the president of the supreme court, Lord Neuberger, suggested historical reasons explained why there was so much antagonism towards judges at the European court of human rights (ECHR).
Neuberger is the latest senior judge to wade into the highly charged debate over Britain’s relationship with both the European Union and the ECHR in Strasbourg, but he avoided taking sides in the dispute.
“The idea of courts overruling decisions of the UK parliament, as is substantially the effect of what the Strasbourg court and the Luxembourg court [the European court of justice] can do, is little short of offensive to our notions of constitutional propriety,” Neuberger said in a speech at Cambridge this week. “All the more so, given that the courts concerned are not even British courts.”
Compared with citizens in other European countries, he said, the British were “peculiarly averse to, and particularly suspicious of, being told what they can and can’t do by pan-European bodies”.
Part of the reason was that England, at least, had experienced 950 years without a single foreign occupation, “so the need to lose a degree of autonomy for the sake of increasing the prospects of peace in Europe resonates far less strongly in the UK than on mainland Europe”.
Britain’s relatively trouble-free history renders most people “almost blithely unconcerned about internal or external threats to the rule of law”, he said. “There is no truer statement than that eternal vigilance is the price of liberty (although in the light of the recent revelations of Mr Edward Snowden, some might say that preventing eternal vigilance is the price of liberty).”
The absence of a written constitution and the existence of parliamentary sovereignty had given the UK no history of courts overruling parliament, he said. “The notion, familiar to any reader of British newspapers, that it is unacceptable for ‘unelected judges to impose a diktat’ on a democratically elected parliament, is peculiarly British.”
But most countries, he said, accepted the notion that there were 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.”
Much of England’s common law tradition were derived from Norman imports anyway, he added. “Our legal story is not one of splendid isolation but rather of splendid synthesis.
“The flow of legal ideas and concepts between Britain and mainland Europe has been and is a two-way process. Since the 17th century, England and Wales have had been in the forefront of liberty. We executed our king more than 140 years before the French.”
Those who favoured pulling out of the European venture, Neuberger said, would argue that “we were perfectly well able to draw from European culture without being part of a European polity”.
Those committed to Europe “argue that the seismic shifts in the world political order, and in the mobility of ideas, individuals, information, and assets, require much greater engagement with Europe”.
In the course of his speech, he also set out what appears to be a novel constitutional precedent. “While judges should not normally take public positions in political debates,” he maintained, “different considerations apply if those debates relate to the legal system or the rule of law.
“Those are areas where the judiciary has unique experience and authority, which sometimes carries with it a positive duty to speak out. By the same token, it is part of our function to explain the legal implications of any important issues being publicly debated.”