The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water. In Bulmer v. Bollinger  Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.
The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law. For tides ebb, as well as flow. The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse. Eurocracy is associated with ever growing popular distrust. The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it). Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project. Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”. Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?
Our courts are, of course, not insensible to this shift, this seeming turning of the political tide. Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame. What, then, is left within the UK constitution after Factortame ? The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham  QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council  QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament. Parliament could modify their terms, but only expressly. In Jackson v. Attorney General  1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office UKHL 17  2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy. They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate  UKSC 46  AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights). In Kennedy v Charity Commission  UKSC 20  2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.” In R (Buckinghamshire County Council) v Transport Secretary  UKSC 3  1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome. As they noted (at § 207) that
“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”
And in R (Osborn) v Parole Board  UKSC 61  3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse).
This (re)turn to the common law seems to encourage the creation of a new “mythistory” – to employ the useful coinage of the American historian William H. McNeil who, in an essay of the same name (published in (1986) 91 The American Historical Review 1-10), noted that “even the most abstract and academic historiographical ideas do trickle down to the level of the commonplace, if they fit both what a people want to hear and what a people need to know well enough to be useful” and, in terms that might be applied to lawyers/judges as much as historians, observed:
“Truths are what historians achieve when they bend their minds as critically and carefully as they can to the task of making their account of public affairs credible as well as intelligible to an audience that shares enough of their particular outlook and assumptions to accept what they say. The result might best be called mythistory perhaps, … for the same words that constitute truth for some are, and always will be, a myth for others, who inherit or embrace different assumptions and organizing concepts about the world.”
Now at one level one can see this move “back to (common law) basics” as a canny response from our higher judiciary to a political climate of ever increasing hostility toward all things European and legal, and an oft-expressed distaste by certain politicians and journalists for un(der)-qualified foreign judges making judgment on British ways. But is it a wholly wise move ? Even a cursory look at the “constitutional instruments” now being increasingly relied upon as sources of law shows that they have to be cleansed and de-contextualised by our judges if they are to do the work called upon them to be the source of our current constitutional principles and basic rights in the 21st century. So many of these historic constitutional instruments are premised precisely on inequality of treatment: whether of serfs, or Jews and women, in the case of Magna Carta; or of Catholics under the Bill of Rights 1688, the Act of Settlement 1701 and the Acts of Union 1707. It is certainly difficult to draw from their terms the claim made by Lord Mance in Axa General Insurance Company Ltd v Lord Advocate  1 AC 868 at § 97 that at the “very core” of common law fundamental rights and notions of the rule of law lie “principles of equality of treatment”.
The other related and equally problematic issue with turning back to the unwritten common law as the source for our constitutional fundamentals and basic rights is that it seems to rely upon judicial intuition and a feeling for the right or the good result here and now in 21st century post-WWII, post-colonial, post-Nuremberg Britain. It transforms judges into Platonic guardians able to perceive these pre-existent rights in the ether, or divine these principles from some imagined Whiggish past. And since there is no one text which authoritatively embodies or enumerates these rights, counsel are rather left in the dark as to how and what they should argue, and quite how much legal archaeology to engage in. Ultimately this kind of Platonism in a judicial context may lead to what the French might characterize as “the Government of Judges”. In relation to judging, however, problems arises with the Platonic approach precisely because it is consequentialist – the good end justifies the means – such that adherence to the strict letter of the rules become less important if this leads to an unjust and unworkable result i.e. floodgates arguments. The problem with simply seeking to achieve what seems or feels like a “right result” is that it might lead the judges to be overly sensitive to the general populace’s sense of “justice” (with its tabloid driven views on what justice requires in a particular case) and the sensitivity to “workability” of results might lead to too great a deference to the Executive’s definition of what they can cope with. In A v. BBC Scotland  UKSC 25  2 WLR 1243 Lord Reed quotes approvingly (at para 23) from an earlier judgment of Toulson LJ (as he then was) and explained in R (Guardian News & Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420  QB 618 as follows:
“[S]ociety depends on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes ? Who is to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.”
But the openness of the courts to public scrutiny cannot be the sole criterion to establish the legitimacy of judicial decision-making. There have to be elements, too, of predictability of decision-making and agreed limitation on what the judges can do with the law. It is precisely to embody those virtues and to protect (unelected) judges from allegations that the power they wielded in their decision-making was an undemocratic exercise in the tyranny of the dead (where past precedents rule over present circumstance) that post World War II Bills of Rights – whether the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the EU Charter of Fundamental Rights – were created. Conscious of the danger that the democratic process could itself be subverted and undermined by the political manipulation of the majority (see for example Refah Partisi (Welfare Party) v Turkey (2003) 37 EHRR 1 at §§ 98-9) democratic governments across Europe signed up and continue to sign up to these human rights charters, to ensure that minorities can be protected. These charters and the bodies of law which have built up around should not be too readily abandoned, nor the mechanisms for their enforcement be too readily disparaged by our own courts, echoing political and popular sentiment. The architecture of enforcement involved international courts and bodies – whether the European Court of Human Rights, the Court of Justice of the European Union or the UN Human Right Committee –precisely to ensure the advantages of distance and, to an extent, a necessary isolation from the immediate national political fray. This was, and is, seen as necessary in order to ensure a degree of objectivity and protection for the individual even against the interests of the nation State in all its forms and manifestation and emanations. Let’s then hold on to these international charters, value their developed and developing jurisprudence lest, to end on a last watery metaphor, we lose the (fundamental rights) baby in jettisoning the (foreign) bathwater.
‘Not Waving But Drowning’, Stevie Smith