The European Convention on Human Rights (ECHR) has had a ‘beneficial’ effect on UK judges, but Brexit could render it a ‘bliplet’ on the common law, the President of the Supreme Court said.
Addressing the Faculty of Law at the University of Singapore over the summer, Lord Neuberger considered whether, since the UK’s accession to the European Union and the bringing into UK law of the ECHR through the Human Rights Act 1998, England and Wales could still properly claim to be common law jurisdictions.
His speech, Has the identity of the English common law been eroded by EU laws and the European Convention on Human Rights?, determined that the common law was alive and well, although he said judges had at first been ‘so excited about the new toy [of the ECHR] that they left the old one [the common law] ‘in the cupboard’.
After the UK voted in the Referendum to leave the EU, he said: ‘Quite where this will lead remains to be seen, but it may well mean that the influence of EU law will be a 50-year blip on the near thousand years of the life of the common law’.
And, he said, the Government’s proposals to repeal and replace the 1998 Act ‘could result in the European Convention influence being no more than a 20-year bliplet on the life of the common law’.
As a serving judge, he declined to comment on whether the developments are good or bad.
Neuberger stated that the ‘direct influence of EU law has been significantly less than the direct influence of Convention law’.
He said: ‘The EU law cases which come to the UK courts involve the interpretation of EU Treaties, Directives and Regulations and of UK statutes intended to give effect to EU Directives. So the issues are essentially interpretational in nature.’
By contrast: ‘The extent of the reach of the Convention, through the medium of the 1998 Act, has been of such width and of such novelty it has had a significant (and I believe a generally beneficial) effect on the approach of UK judges when deciding cases.’
But he warned judges to ensure that in applying any principles from Strasbourg, they do not ‘undermine the essential characteristics of our constitutional system, based on the common law and parliamentary sovereignty’.