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Neuberger: “robust approach” on human rights

5 July 2010

A more “robust approach” should be taken by UK courts in their dialogue with the European Court of Human Rights in Strasbourg, Lord Neuberger, the Master of the Rolls, has said.

He said there was a need to explain “the common law position and exactly how and why it sets out a perfectly consistent means of facilitating the rule of law and protecting fundamental rights”.

Lord Neuberger went on: “Equally, it will require from Strasbourg a more acute appreciation of the validity of the differential approaches taken by convention states to the implementation of rights.

“This is not to suggest a weakening of standards or that Strasbourg should adopt an inconsistent approach to determining minimum standards.

“It is to suggest that Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between convention states and their implementation of high-level principles.”

The Master of the Rolls praised the Supreme Court’s decision in R v Horncastle [2009] UKSC 14, a case heard by six justices including himself and the Lord Chief Justice, Lord Judge.

The Supreme Court unanimously upheld the existing domestic rules on hearsay evidence and warned the ECtHR that overturning them would leave criminals free to add to their victims.

Giving the leading judgment in Horncastle, Lord Phillips said Strasbourg case law appeared to have developed without consideration of the safeguards that existed under English law.

Delivering the European Circuit of the Bar’s first annual lecture at Gray’s Inn, Lord Neuberger suggested that intermediate courts at member state level could decide preliminary references, which were currently dealt with by the ECJ, or even substantive matters.

“Might for instance the Supreme Court in each member state become capable of sitting as part of the Court of Justice of the European Union – a European Union district court?”

he asked.

“The model is there for such a development. We need only look westwards

across the Atlantic, towards the US

Federal Court structure, for a procedural

and structural model.

“Might it not be a more efficient way to develop European Union law, if each member state was capable of taking responsibility for its development, with an appeal lying from such decisions to the ECJ?”

The Master of the Rolls concluded: “Just as there are many streams which flow from a well-spring, there were many ways to protect the rule of law of fundamental rights.

“A court which looks at the concrete application of high principle in different states with different traditions should hold that firmly in mind when it approaches the width of the margin of appreciation to be applied in each case that comes before it.”

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Children Procedures Costs EU & International