We do not need to look to Europe for a source of legal inspiration
I know. You do not read judicial speeches. You do not have the time. And, heaven knows, the LPC did not encourage such diversion of potentially chargeable hours. Better to leave such musings to their natural audience of fellow judges, academics and the bar. This might be a generally serviceable maxim for any solicitor to live by. But if you are at all interested in judicial review, the constitution or politics, catch Lady Hale’s latest at tinyurl.com/oa6e857.
Let Lady Hale summarise her own argument: ‘After more than a decade of concentrating on European instruments as the source of rights, remedies and obligations, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration. Sometimes this expands the range of what is available, sometimes it may constrict it.’ So, there it is in barely ciphered code. In the political world, maverick Tory MPs defect to UKIP: in the judicial universe, growing ‘Little Englandism’ is also acknowledged – though rather more subtly. Lady Hale shrewdly labels her response ‘UK Constitutionalism on the March’. She expressly rejects a suggestion that she really means ‘the [judicial] empire strikes back’.
A word first on Lady Hale. She is famously the first and only woman on the Supreme Court or its equivalent. As importantly, she is one of the few of its members to have spent a sizeable amount of time outside the Oxford-London-Cambridge triangle. Let us hear it for her near two decades in Manchester. It undoubtedly assisted her breadth of understanding of the social purpose of law – very clear in writings on the family – and, as we can see in this lecture, on jurisprudence as well. How she contrasts with the other Supreme Court justice with a significant academic background (Eton, Magdalen College, Oxford). Bidding to become the Antonin Scalia of the English bench, Lord Sumption favours a more limited role for judicial challenge of government action (see his 2011 F A Mann lecture).
Lady Hale illustrates her argument by reference to a run of recent cases where judges have followed the approach of first assessing common law rights and only then looking to the European Convention on Human Rights. Actually, this logical position is of some considerable standing and goes back to the time when the House of Lords began seriously to explore the operation of the Human Rights Act. Lord Bingham was particularly assiduous in this regard. As Lady Hale herself points out, the decision against the admission of torture evidence in civil cases made at the peak of the House of Lords’ first major sweep of rights cases (A v Secretary of State for the Home Department (No 2)  UKHL 71,  2 AC 221) was actually based on (arguably specious) common law principles rather than anything in the Human Rights Act. We might note that this was the case where Lord Neuberger, now president of the Supreme Court, made his name in constitutional law by getting the answer right in the Court of Appeal.
Lady Hale’s argument is that you do not need to rely on Euro-sources for rights such as those requiring a fair trial. You can get that from a line of domestic judgments ultimately deriving from Magna Carta and the Bill of Rights. The sentiment was strong enough in R (On the application of Guardian News and Media) v (1) City of Westminster Magistrates Court (2) Government of the United States  EWCA Civ 420 to justify the Court of Appeal requiring disclosure of US documents relevant to extradition: ‘The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.’
So, the good news for rights advocates is that senior judges are entrenching their position behind solid common law ramparts. Note in particular the handy concept of the principle of legality, ‘which requires parliament expressly to legislate to limit fundamental rights – and thus openly to confront the political controversy entailed’. The bad news is, of course, that – absent the Human Rights Act (apparently now Conservative party policy) – common law proclaims parliamentary sovereignty to override any right that it adequately defines.
Lady Hale concludes with a tease: ‘Whether this trend is developing as a response to the rising tide of anti-European sentiment… whether it is putting down a marker for what might happen if the 1998 act were repealed, whether it is a reflection of distinctive judicial philosophies… or whether it is simple irritation that our proud traditions of UK constitutionalism seemed to have been forgotten, I leave it to you… to decide.’ Read her speech and make up your own mind.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice