Courts Move away from EU Law to Common Law

Courts move away from EU Law Brenda Hale

Supreme Court Vice President Lady Brenda Hale in a keynote address to the Constitutional and Administrative Law Bar Association Conference 2014 questioned whether there has been a move away from EU law to common law due to the rise of anti-EU sentiment.

After many years of the courts considering EU legal principles, Lady Hale has suggested that recent decisions highlights the fact that UK constitutionalism is ‘on the March’.

Lady Hale wished to classify this theme as ‘UK Constitutionalism on the March’ rather than Richard Clayton’s description ‘The Empire Strikes back’.

She described this theme as:

“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”

This renewed emphasis is documented in the list of cases that Lady Hale discusses in her keynote address to the Constitutional and Administrative Law Bar Conference 2014. Cases such as A (No 2), HM Treasury v Ahmed, Osborn v Parole Board, A v BBC and the HS2 case according to Lady Hale demonstrates the move away from European principles and back to UK constitutional principles. It highlights Lady Hale’s argument that there is a growing awareness that ‘UK constitutional principles should be at the forefront of the court’s analysis’.

Litigants and litigants have been reminded to look ‘first to the common law to protect their fundamental rights’.

Hale questioned whether it was the anti-EU sentiment amongst MPs that has caused this development in Courts, or whether it was judges philosophies influencing the court, or simply that the law was returning to the traditions of UK Constitutionalism.

What are your thoughts? Is this trend a response from anti-EU sentiment amongst parliamentarians, or whether judges opinions are pushing this development, or it is just looking back to common law principles. Or is it even mix of the three, a mix of two or none of these responses.

You decide!