 Lleiw yr wyf yn ysgolodau, oeddaeth, ychydig yn y blynedd, oeddaeth yma yn Sara Worthington, sydd yn gallu'n teimlo. Ond rwy'n fydda'n ysgrifenni eich bod yn gwneud, mae'n gweld i'r Ffacultear Llywodag yma yw Cymru, ond hefyd o'r Llywedd Genedl. Balog по'r ymgywyddau ar ôl i gymryd o'r Llywedd Genedl, rywbeth a'r ffacultear roedd o'r llwydd, ond oedd yn y rheidio meddwl i hyn. Dyna'r cymhwil â syniadau angen o'r llwysgaeth honno iawn i'r blaenau cymhwil â'r Llywodraeth Cymru. Mae'r Llywodraeth Cymru yn ychwynig ar y ddechrau cymhwil yn eich ddweud. Ond y cymru yn ymgyrch gan unrhyw ffrindio'r cymhwil sy'n bywch yn bywch yn ysafodol a'r defnyddio'r ddechrau o'r llwyddoedd bobl. Oherwydd, ydych yn digwydd i'n gwneud o'r Lord Newburger yn yr ystod o'r ysgol i'r ysgol i'r pethau yma, mae'n gweithio i'r cyflodau cael ymateb o'r ysgol. Oherwydd, rwy'n gweithio i Lord Newburger i'n gwneud i'n gweithio, ac mae'n gweithio i'r hyn o'r ysgol, rwy'n i'n gweithio i'r ysgol. Yn y rwy'n gweithio i Lord Newburger, mae'n gweithio i'r ysgol i'r Cyfrin Cord. Mae'n cyfrin Cord yn y Rhaf y Llywodraeth, fel nid ydy'r syniad lleolwyddiadau yn llwyddiadol i Llyfridog ystod arol ar hwn, ond byddwn dri o'r Llyfridog'r Llyfridog sy'n cyth composer Rydym yn dod ymateb mawr, o erfyd yn Ysgrifennid Gweithgoedd y Llyfridog yn Ynglyn i'r Llyfridog yw Llyfridog. Byddwn i'r Llyfridog ystod i'r Llyfridog ar y ddod y 2012. Felly maes i'r Llyfridog fel y chyflopbion ar gweithio. Brydosteriaethau'r Llyfridog yn Llyfridog y Llyfridog, ond yw yw yw'r lleif, a'r lleif yn cael ei gwybod bawb. Nid yw'r Gwyl Lord Newburger, ac mae'r ysgolwyd yn rhoi'r ysgrifennu'r ysgolwyd, ond rydyn ni'n fydd yw'r Lord Newburger ydy'r cyfleu yn y rhan bau. Rwy'n rhai sgwyl hwn, ac nid nhw'n ddwy'r hynny'n ddwy'r hynny'n ddwy'r ysgolwyd, yw y profesiad. Rydyn ni'n ei ddwy'n gweld yn ddwy'r Gwyl Lord Newburger yn ddwy'r llwy. All four of these sons clearly have a scientific or a mathematical bent, and indeed Lord Newberger might have headed in that same direction. He studied chemistry, not law, at Christchurch in Oxford, and on graduation, as quite a lot of scientists do, he then worked for a merchant bank. He worked for Rothschilds and Sons for a few years before finally turning his attention to the law. He was called to the bar at Lincoln's Inn in 1974, Queens Council in 1987, High Court Judge in 1996, Court of Appeal 2004, House of Lords in 2007. Lord Newberger's rise to the Court of Appeal and then to the House of Lords was astonishingly rapid. When he was first appointed to the Lords, he was the youngest sitting law lord because he was not then yet 60. I know quite a lot of our High Court judges are 60 when they are appointed. So, as I said, he was the master of the roles from 2009 to 2012 and then president of the Supreme Court. He didn't reach these heights by being retiring and conservative. He certainly speaks his mind. So, 2006 to 2007, he led an investigation for the bar council into widening access to the bar, which is always controversial. 2007, just for the students, was when he delivered that powerful dissenting speech in Stack and Down, a case which you will all know well, where I think he warned that the majority was at risk of violating principle and departing from established precedent and complicating the judicial tasks. And only went. You know, 2010, peace protesters in Parliament Square, who had camped out in Democracy Village, he said they should be evicted after they lost their appeal. Super injunctions that the social media sites like Twitter were totally out of control and society should consider ways of bringing these websites under control. But his lectures have been no less arresting. It's not just his judgments. I well remember when the controversial issue of controlling costs of litigation. In fact, the never ending debate on that. He had the headline, quick and dirty justice is better than the risk of no justice at all. And then of course my favourite, closer to home, I was in Hong Kong at the time and Lord Newberger was giving one of the common law lectures. And he had a title for his lecture which I thought was directed very personally at me and my ilk. Has equity had its day. But enough. Tonight Lord Newberger has chosen as his topic the British and Europe. And I think from the choice of those four words and just their placement, suggests we're in for a treat and no doubt for a few surprises. So without more ado I'll hand over to Lord Newberger. He's going to give his lecture and then he has agreed that he'll take questions. So you can prepare. But here's Lord Newberger. Thank you very much indeed. It's a great pleasure to be here in Cambridge. It's a somewhat poignant experience as well. You very kindly referred to my three brothers. One of them was a fellow of Trinity and a highly distinguished scientist and a lovely person and he died 15 weeks ago. I haven't been back to Cambridge since his funeral and it is a poignant occasion to be here. It's also a great honour to be asked to give the first Freshfields lecture. I had originally written in my script that it was a great honour to be asked to follow so many previous distinguished speakers. But I've been saved from that solicism by being told it's the first inaugural Freshfields lecture which makes it a much greater honour. I referred to my brother at a time when he was still in short trousers and I was a teenager in the early 1960s. It was a fertile time for satire in the United Kingdom. Some of you, my colleagues included, will remember the beginning that was the week that was and beyond the fringe. But there was a double act which was rather gentler, rather more middle aged some might say, which sadly for a teenager in the 1960s appealed to me then and 50 years later it still appealed to me. It was a couple called Flanders and Swann. Michael Flanders bearded, sceptical and in a wheelchair wrote the lyrics and did the singing. And Donald Swann, a respectable dynarnist, composed the tunes and played the piano. Probably their most famous song was the hippopotamus song, Mud, Glorious Mud. But one of their many clever and funny songs was a song of patriotic prejudice. The song started with what Michael Flanders called a typical English understatement which was the English, the English, the English of best. I wouldn't give tuppence for all of the rest. With my voice I don't apologise for not singing. If I had sung it that would have been cause for apology. But as with all the best humour, the song is based on a significant truth. At least to some levels many English people see themselves as different from foreigners and by foreigners they primarily mean Europeans. The English do have a somewhat similar singular attitude to foreigners and I think it's reflected in part in the current debate about the United Kingdom's involvement in the European Union, the EU and the Council of Europe which means the Convention on Human Rights. These debates are ultimately I suppose political and so as a judge I have to tread a little warily when discussing them. So it's right to begin by emphasising that I'm not seeking to advocate any particular view on the issues of Britain and Europe. I have two aims in giving this talk. The first aim is to try and put the arguments about our membership of the two institutions, the EU and the Council of Europe in their historical and cultural context. Any political debate carries with it a danger of generating more heat than light and that's particularly true when the issues are seen by those on both sides as being fundamental to their country's economic and political future. Understanding the historical and cultural context is essential to a proper understanding of such debates to explain what the issues are and how and why they arise. Without looking at the context there's little prospect of appreciating the real nature of the underlying issues. The historical context also serves to remind us that things often look very different after the event even to those in the thick of the argument of the time. My second aim is to provide a context in a different way, perhaps a more parochial context. That is to address the nation that UK law and in particular the common law is being subjected to undesirable mainland European influences from the jurisdiction of the Court of Justice of the European Union, the European Court of Justice in Luxembourg and of the European Court of Human Rights in Strasbourg. While judges, as I've mentioned, should be careful of taking public positions in political debates, perhaps different considerations apply if those debates relate to the legal system or to the rule of law. Those are areas where the judiciary has a unique experience and authority which sometimes carries with it a positive duty to speak out. By the same token it's part of our function to explain the legal implications of any important issues being publicly debated. Before turning to these two areas of discussion it's right to acknowledge that in the debate about our membership of the European institutions there's a great risk of eliding or confusing the United Kingdom with England. I've already been guilty of it myself in less than five minutes into this talk. Perhaps it's inevitable with England representing over 85% of the UK's population. But the attitude of many English people to Europe is perhaps more suspicious or hostile than that of people in Scotland and Wales, although not I think of so many people in Northern Ireland. And this no doubt mirrors the fact that many people for some reasons, sorry, no doubt mirrors the fact that some of the reasons for such suspicion or hostility are either English in their nature or origin or even more in England. If I were during the course of this talk to identify and discuss every distinction between England and other parts of the United Kingdom the talk would become tedious or perhaps I suppose some of you may think even more tedious. So I apologise if in advance particularly as I have two of my Scottish colleagues in the audience if at times I appear to be subsuming other parts of the UK when talking about what is really England. The decision whether we should change the terms of our membership of the EU or our membership of the Council of Europe or alter the terms raises very difficult issues which involve assessing what is going to happen in this country what's going to happen in mainland Europe and what's going to happen in the world. As the great quantum physicist Niels Bohr allegedly said prediction is very difficult especially when it's about the future. Sylva has demonstrated in his thought provoking recent book prediction is an uncertain business in many areas of law and of life generally the more confident a prediction the less reliable it is. Sylva asserts and demonstrates that economists have for a long time been much too confident in their ability to predict the economy perhaps we didn't need him to tell us that and he also shares convincingly that political pundits he further says experts are like other people heavily influenced by their convictions and their prejudices and unsurprisingly the lessons of history don't speak with a clear voice on the question of the future of the UK and Europe I suspect that like the Delphic Oracle the lessons of history are always fated to be ambiguous or at least they are always capable of being interpreted as the particular student historian, pundit, politician wants but two centrally important aspects of the context in which the controversy about our future in Europe is taking place are our history and our culture and consideration of our history and culture doesn't give us a solution to the controversy about our position in Europe but it informs any search for a solution and it reminds us that history will judge our decisions a thought which is rather frightening future generations will assess our decisions through what for them will be the relatively clear lens of ascertainable recent history whereas we have to reach those decisions by looking through the impenetrable fog of the unknowable future but we do owe it to those generations and indeed to ourselves to understand the context in which the issues about Europe are being debated there are I think a number of reasons why when compared with people in other countries the British are particularly averse to or particularly suspicious of being told what they can and can't do by pan-European bodies some of those reasons can be encapsulated in the simple point that over the past millennium the UK and in particular the three nations of Great Britain England, Scotland and Wales have enjoyed a more self-contained and stable existence than any other nation in Europe this can be demonstrated in the fundamental features of our history first since Wales was effectively united with England in the 13th or some might say the 16th century there have been no changes in the boundaries of the countries of Great Britain there's been a union with Scotland but that was consensual it's only across St George's Channel in Ireland that there have been problems but they've never seriously threatened the integrity of Great Britain many European countries including Germany didn't even exist 150 years ago and even France's borders have moved significantly over the past 200 years of the other large European countries perhaps only Spain gets the clasest to having had consistent boundaries albeit only since 1492 so we've had in this England and Wales with Scotland have had a clear inconsistent national identity in geographical terms for over 700 years I think it makes it more difficult even bearing in mind the present move for Scottish independence in Scotland for us to accept a loss of borders even for limited purposes secondly, since 1066 the UK has never been successfully invaded by a foreign power there have been attempts at invasions the throne has been claimed from time to time from abroad but that was by kings or queens with hereditary claims the fact that we have never been invaded from abroad for nearly a millennium with any success is a record which I think no other European country can claim so the need to lose a degree of autonomy for the sake of increasing the prospects of peace resonates far less strongly in the UK than in mainland Europe thirdly, since the 17th century this country has never had any sort of revolution we have evolved but unlike almost any country on mainland Europe no government of the UK has been brought down by violence for over three centuries it's a very different story from the mainland European countries indeed, although British governments feared a revolution after the invents in France in 1789 or even in 1848 1918 and 1989 years of revolution in Europe they passed this country by with scarcely a peep so again the need for some pan-European some super-European institution to lessen the risk of revolution to undermine to risk the undermining of democracy seems less persuasive to people in this country than on mainland Europe these are all points of legitimate pride for this country but we should be very wary of self-congratulation I'm sure as many has occurred to many of you probably long before I spoke and certainly while I was speaking all three features can be explained at least in part by geography unlike almost every other European country and unlike any other large European country the UK is a separate island or perhaps a separate group of islands divided from mainland Europe by the sea so this has provided us with a clear and secure national boundary protected us from invasion and assisted government control quite apart from this self-congratulation supports those who think we are safe from tyranny and safe from interference with our freedoms as to that there is no truer statement than that eternal vigilance is the price of liberty although in the light of the recent revelations of Mr Edward Snowden some might say that preventing eternal vigilance is the price of liberty but the more to the point for present purposes our independent and relatively trouble free history makes Britain's almost lightly unconcerned about internal or external threats to the rule of law with their more turbulent experiences one can well understand how mainland European countries are much more aware of the fragility of the rule of law and perhaps less jealous of their national sovereignty it's easy to see why they are more prepared to live under a system which includes European-wide institutions and courts which can enforce the rule of law across the continent and ensure a degree of harmony between its different nations and governments and a judiciary which can sometimes ensure the rule of law over the heads of the legislature the frightful experiences of German national socialism and Russian communism during the last century has given such concerns that it has a relatively sharp focus and of course it's no coincidence that both the Council of Europe and the European Union arose out of initiatives in the late 1940s and the early 1950s following the rise and fall of totalitarian Nazi Germany and its military domination and the start of totalitarian Russian domination of Eastern Europe nor is it a coincidence that many of the European initiatives were given a fresh imperative following the collapse of Russian communism domination Europe of course recovered remarkably fast physically, economically and politically following the Second World War but not least because those aspects of the recovery were markedly more successful in democratic Western Europe than in totalitarian Eastern Europe it has I think been seen by many mainland Europeans as underlining the benefit of institutions such as the European Union and the Council of Europe so for all these historical reasons it appears to me unsurprising that mainland European peoples governments and media are more ready than their UK counterparts to join in and support institutions which involve effectively trading away a degree of national sovereignty or self-determination in return for closer mutual cooperation into governmental coordination and supranational dispensation of justice but I think it by no means stops there the United Kingdom enjoys other characteristics which render it less ready to join in such ventures than their mainland European counterparts two of those characteristics are like those I've been discussing so far fairly general in nature and two others involve what may be described as more cultural or really legal features unsurprisingly all four features I have in mind like those I've so far discussed are wrapped up in our history it's easy to forget that until recently the United Kingdom was a premier league world power less than a century ago it was perceived by what the writers of 1066 and all that called the top nation over 20% of the world's landmass in terms of both area and population was incorporated in the British Empire as recently as 75 years ago at that time and for decades thereafter that the nation that the UK should be one of a number of equal European states would have been greeted with a reaction which fell little short of contempt by the great majority of people in this country even Winston Churchill who's your speech in 1946 was the starting signal in many ways for the Council of Europe and who with one eye on history and the other on posterity with the strong support of European integration after the war he saw no need for UK involvement in Europe during the post-World War II period this was consistent with what he'd said in 1930 when he explained that although he supported the proposal to create a European Federal Union he believed that the UK could never be part of it because and I quote we have our own dream and our own task we are with Europe but not of it we are linked but not comprised we are interested and associated but not absorbed the loss of the empire and the loss of world premier league status since that time has inevitably caused problems to our national psyche and although it's a tribute to the UK those problems have been accommodated without significant unrest or threat of revolution it is true that a transformation from a global preeminent status to just one of many EU or European Council members requires an almost superhuman attitude and adjustment it's true that France and Spain also had empires but France's was nothing like that of Britain in size at least since the late 18th century and Spain's largely fell apart by the end of the 19th century the other general distinguishing feature of the UK is one whose force has markedly diminished over the past century but I believe that it's still a factor it's religion most of mainland Europe particularly the part near us is predominantly Roman Catholic although just over half the German a Christian population is Catholic and of course the Scandinavians are predominantly Protestant much of southeastern Europe is Orthodox but England and Wales have been Anglicanism for nearly 400 years the influence of religion on European politics in modern times is difficult to assess but the fact that it exists in some subliminal form is perhaps most clearly demonstrated by the number of major political parties in Europe which have Christian in their names this has never been a feature of UK politics furthermore not only is the UK not a Roman Catholic country but it has rather peculiarly a national religion which may serve to emphasise in the minds of some it's different and exclusiveness indeed for most of the past 450 years since the accession of Queen Elizabeth I the British have been very suspicious even fearful of Roman Catholicism or as it was called but rarely is any more papism in the 17th century was opposed because of a fear that he was trying to bring the country back to Rome in the 18th century fears of papism led to the Gordon riots even in the 19th century emancipation for Roman Catholics giving them the right to be in Parliament was hotly opposed I suspect that the historical penumbra of a rather unique concern about the Church of Rome has influence feelings in some quarters of Europe in the UK the contrasting absence of such concern in Ireland may perhaps be explained in part by the fact that it is a predominantly Roman Catholic country turning now to the two more specific cultural or legal characteristics I think it's very significant indeed that the United Kingdom has had a very different constitutional arrangement from virtually every other European country we have no written constitution and we have full parliamentary sovereignty indeed it may be said with some force that we have no constitution at all merely constitutional conventions and that it's a consequence of that that we have parliamentary sovereignty the relatively pragmatic outlook of a system with no written constitution and parliamentary sovereignty involves a very different approach to government from the more principled but less flexible system enjoyed by the rest of Europe but the point goes further than that the absence of a written constitution and the existence of parliamentary sovereignty means that we have no real history of the court's overruling parliament over the past 30 years there's been an academic debate sputtering away about whether in extreme circumstances the court could actually overrule a statute but so far it's very much of an academic issue and I hope it remains so but there are three significant consequences of our having no formal constitution for present purposes the first is that subject to some sort of marginal debate of the sort I've just mentioned the legislature in the UK parliament has always been able to trump the judiciary parliament can reverse a judicial decision with a statute but the court cannot overrule a statute through a judicial decision in a country with a written constitution the court cannot overrule a statute in a country with a written constitution the courts can overrule or set aside a statute if it infringes the constitution so mainland European countries like almost all countries in the world are used to the idea of judges overruling legislation enacted in parliament the UK is not that means that the idea of the court challenging decisions of the UK parliament as is substantially the effect of what the Strasbourg court and the Luxembourg court can do is little short of offensive to our notions of constitutional propriety and the insult is all the greater when the challenge is from foreign courts in Luxembourg and Strasbourg rather than in England of course to technical lawyers it must of course be acknowledged that there's nothing strictly revolutionary in this the European courts powers and indeed the domestic courts powers in this country to overrule or challenge statutes are derived from parliament itself which accepted the courts power to do this when it joined the Council of Europe the Strasbourg courts power to do this when it joined the Council of Europe in 1952 and the Luxembourg courts power to do this when it joined the EU in 1952 and it gave in due course the courts powers 1973 I'm sorry and it gave the courts powers to do this under the European Communities Act and the Human Rights Act and what parliament gives it can take away but that point really doesn't take the present issue further because first of all the public perception is quite plain the courts have these powers and can challenge parliament and anyway in a sense the point I've just made begs the question which is whether parliament should reclaim the powers by effectively pulling out or substantially modifying our involvement in the European Council and the European Union so I come back to the point that the notion familiar to any reader of British newspapers of a certain type that it is unacceptable for to quote them daily mail chosen at random of course unacceptable for unelected judges to impose a diktat, no coincidence they use a European word to impose a diktat on a democratically elected parliament is peculiarly British most countries accept the notion that there are times when it's a good thing for the rule of law that independent judges who do not need to court short term popularity or worry about re-election should be able to act as a control on what would otherwise be an unbridled legislature again the European attitude the mainland Europe attitude may be reflected in their history Hitler and Mussolini both came to power as a result of a democratic election and democratically elected governments didn't protect Czechoslovakia or Romania from communist takeovers in 1940s or whatever is said in our newspapers and elsewhere about our politicians we have not had that sort of problem the absence of a written UK constitution has a second effect that the European convention on human rights has a much greater prominence in our judicial decisions than it does in decisions of judges in countries that have written constitutions so in the familiar case involving freedom of expression and privacy or a case on the right to marry or other infringement of civil rights if it's heard in this country any decision is likely to be determined by reference to the convention as that is where such rights very often are primarily to be found in the current UK legal system but such rights in a place like Germany are just the sort of rights which are likely to be found in their written constitution saying Germany when it's alleged that such rights have been infringed the case will primarily be determined by reference to the German constitution the convention will therefore loom very much less large when the German federal court or the German constitutional court decide such issues than here and of course because a relatively high proportion of court decisions which attract media attention are concerned with human rights the convention receives an added dose of publicity in this country and because media are inevitably much more interested in decisions which are controversial the convention and human rights receive inappropriately unfavourable media coverage in this country when a decision which the newspapers like is reached in Strasbourg or Luxembourg which it very frequently is it's not news it's only when it's not liked that it's news that's life I don't complain about that good news is boring, bad news is fun a third consequence of not having a constitution is that one way of as it were fighting off EU decisions or decisions of the Strasbourg court which is available to many other European courts is not abren to us the point may be graphically illustrated by the decision last week of the German constitutional court it was considering the legality of an essential aspect of the European central bank scheme for supporting the euro something going under the name of the outright monetary transactions programme while the German constitutional court has played for time by referring to the Luxembourg court the question whether this programme infringes EU law the German constitutional court has left open the possibility that it may decide that the programme infringes German law and if they so held it would be unlawful for the German government to carry on with it which would according to some commentators throw the future of the euro into doubt so the fact that Germany has a constitution enabled the German court on occasion to say that German law trumps EU law that's an option which is much more rarely if at all open to a UK court as we have no constitution to invoke but it's right to mention that in a recent decision of the Supreme Court in this country involving the HS2 rail line proposal we did raise the possibility of certain aspects of what Luxembourg suggested the court in this country might have to do was simply inappropriate for our system as it could involve us investigating what parliament had decided and how it had decided it so on the margins in without a formal constitution for us to take this line but it is a much more available line for a country with a constitution another cultural factor also a legal one which distinguishes the UK from almost all other European countries is that we have a common law system whereas they have a civilian law system this may appear to be rather an esoteric point but it has two aspects of relevance in a broad sense rather like the religious difference it indicates or reflects a rather different cast of mind or approach the common law reflects a relatively pragmatic as opposed to a more logical approach a vital feature of the rule of law namely the legal principles by which legal disputes are decided are developed in our system by common law judges who may can develop principles rather than doing what their civilian equivalents do namely to take their principles from a detailed code one can exaggerate this difference and reading decisions for instance of the German constitutional courts and some of the other German courts their approach is not that different from us read the French and the Italian decisions and you do see a different approach Francis Bacon were not allegedly writing Shakespeare's plays accepting bribes or sitting as Lord Chancellor wrote wonderful essays on science and philosophy he drew a distinction between the ant and the spider in these terms those who have handled sciences have either been men of experience a men of experiment or men of dogmas the men of experiment are like the ant they only collect and use the reasoners resemble spiders who make cobwebs out of their own substance applying the metaphor to the law the ant is a common lawyer collecting and using forms of action seeing what works and what doesn't and developing laws on an incremental case by case basis the spider is a civil lawyer propagating intricate principle based codes which can be logically and rigidly applied to all disputes and circumstances in Europe the common law ants are heavily outnumbered by the civilian law spiders in particular the Luxembourg and Strasbourg courts a manned by judges whose knowledge and experience are almost always civilian and not common law this leads to an approach to our forensic procedures indeed sometimes to our whole forensic attitude in this country which at least from our perspective involves a misunderstanding of how we work I don't want to exaggerate the point but it's there it does illustrate it is to say on occasions that Strasbourg for example has been prepared to think again a final feature of our history and culture which renders it more difficult to the UK to identify unequivocally with any sort of link with Europe is our connection with the United States I'm not talking about these special relationships so much in terms of diplomacy or politics which whether real or imaginary is as much if not more of a consequence than a cause of the link the origins of the link lie in the combination of geography history, politics, culture and language it was not merely in the 18th century that there was enthusiasm about uniting the US with the UK in a single country within the past century it was part of Winston Churchill's vision as Linda Colley explains in her recent book Acts of Union Acts of Disunion the precise nature of the special relationship is a matter of debate and speculation but today for today's purpose the central point is that both those who see the Atlantic partnership as more significant than the European partnership and those who wish to maintain a foot in both camps are obviously going to be antagonistic to an unequivocal commitment to Europe the links between the US and some other European countries especially France and Germany albeit for different reasons while real and strong are I think less significant in terms of culture and obviously language of course the factors I've been discussing are by no means the only ones which play a part in the European debate but I believe they are important the present discussion is not about whether we should join the European venture that was debated after the Second World War before we joined the European Council in 1952 and was debated in 1972 and again in 1974 when we joined and then decided to stay in the EU the present debate is whether we should pull out or whether we should weaken at least our involvement and it may be appropriate briefly to consider not only the context outside the tent but our experience of being inside the tent our membership of the Council since 1952 and membership of the EU in 1973 have had an inevitable effect on our politics on our economics and on our law and I would like to concentrate a little on the influence on European involvement on the law because that is my area I hope of expertise but it's also I think because changes in the law do reflect an influence wider changes in society particularly perhaps most notably to be seen by the discrimination by the racial gender discrimination legislation of the 1960s but 35 years ago Lord Denning famously observed in terms which today may have particular resonance with those living in the Somerset levels that the flowing tide of community law is coming in fast it's not stopped at high water mark it's broken the dykes and the banks so much though we have to learn to become amphibious to keep our heads above water the point was reinforced 14 years later when Lord Bridge famously said that it was the duty of a united kingdom court to override any rule of national law found to be in conflict with any directly enforceable rule of community law and ten years later lawyers and indeed the media became acutely aware of the effects of the convention because since 2000 it has of course been the duty of our courts to apply the human rights convention the experience of more than 30 years applying EU directives and legislation and of more than 12 years applying the convention coupled with considering and following decisions of the Luxembourg and Strasbourg courts and sometimes not following them has made a great difference the approach of UK judges when deciding cases of course we've had new topics like VAT new concepts such as subsidiarity with EU law and convention law has introduced us to new topics like privacy and new concepts such as the margin of appreciation and they have self evidently changed our law we've seen all sorts of cases about balancing the rights of public figures to privacy against the freedom of speech neither privacy nor freedom of speech have been recognised in statute before and now indirectly through the convention they are but when I say that UK law has changed as a result of our European involvement I'm not just referring to the inevitable fact that the courts have had to apply new principles studying judgments of the European courts has led courts in this country I think to taking a more principled approach to decision making than in the past it's scarcely surprising as I mentioned the common laws tended to be more pragmatic and therefore more ready but and therefore less principled in some sense but conversely because we are now more involved with and concerned with European court decisions we have as a pragmatic nation and as a pragmatic legal system been more ready to adapt to incorporate what European ideas that there have been I think Lord Denning's incoming tide is no more than the latest inflang of waters which have already left fairly rich deposits on flood plains of the English law it's easy for us to forget that the English common law and equity have a continental origin the common law started as feudal law administered in England by early Norman King and it was essentially much the same law as they administered in Normandy as Maitland put it the law which prevailed in the 12th century in England was in a sense very French it was a law evoked by French speaking men many of whom were of the French race many of whom had only just began to think of themselves as Englishmen in many respects the common law was closely similar to that which prevailed in France it was the combination of English forms of action with Norman Ritz that formed the basis of the English common law and it produced a system which lasted procedurally until 1852 and lives on substantively today the jury trial dates back to I think 1087 when William the Conqueror's half-brother Odo Bishop of Bayer of Tapestry fame presided over the first recorded 12 man jury as for equity the court of chanceary processes developed out of a particular form of canon law procedure probably also introduced around the time of the Norman conquest namely the Denunciato Evangelica one of its special features was discovery or what now thanks to Lord Wolf we have to call disclosure which while currently regarded with suspicion in many parts of continental Europe was ironically imported from there to England Admiralty law was always predominantly civilian in its make-up following and applying the European Jus commune but one does not have to go back to the middle ages to see mainland Europe's influence on the development of the common law many of the innovations which served to justify the great Lord Mansfield's reputation as the founder of commercial law of this country were based on European civilian law the Lex Mercatoria in one case Mansfield said mercantile law is not the law of a particular country but the law of all nations and many of his landmark decisions were based on aspects of mercantile or European law so the idea that English law is developed as a sort of self-contained system for a thousand years which is now being ruined by European imports is misconceived we've long drawn from continental waters indeed seems to me at the great success of English law common law and equity is like the English language its ability to absorb influences for its own purposes enriching itself as it does so our legal history is not one of splendid isolation but rather it is of splendid synthesis having identified some of the reasons why the British may feel a degree of exceptionalism not found on mainland Europe and having discussed the relationship between our law and European law it cannot I think confidently be suggested that they justify any particular outcome for this debate the debate about our ruling Europe the various factors which I've been discussing may help explain rather than justify reservations which many people in this country have about being part of the European venture but they also demonstrate the cross-fertilisation between British and the rest of Europe particularly perhaps in law but that had unsurprisingly always been happening those who favour of pulling out of the European venture or at least reducing our involvement in Europe would no doubt rely on the fact that the UK's historical and cultural DNA includes many genes which encode for separation and exceptionalism whatever changes there may have been to our status those people point out that we remain an island with very different experiences and very different conventions in mainland Europe they would also say that we can perfectly well able to draw from European culture without being part of a European polity those committed to Europe no doubt would rely on the fact that the UK has never been engaged from Europe and that the current European ventures involve no more than a natural evolution so that no genetic manipulation is needed they also argue that the seismic shifts and the world political order and in the mobility of ideas individual mobility of ideas, individuals information and assets require much greater engagement with Europe barriers to be put down rather than put up in their song of patriotic prejudice which I referred to when I opened Flandres and Swan contrasted the British and foreign attitudes to sport as they put it unlike England all the world over each nation is the same they have simply no notion of playing the game they argue with umpars they cheer when they've won and they practice beforehand which ruins the fun well anyone who watches match of the day or followed the 2012 Olympics will realise how those observations which were well within my lifetime about this country and were seen to be right have changed how this country has changed we do practice beforehand we do cheer when we've won and it doesn't actually ruin the fun at least some people think it doesn't but it does indicate that things can change whether this change is to be welcomed or regretted is a matter of opinion whatever their view about it I expect most people would agree that that change in relation to our attitude to sport was inevitable so too whatever the outcome of the present debate on Britain's future in Europe I suspect that future historians will conclude that that outcome was inevitable and will give convincing reasons for it it's so easy when you know the answer or as Niels Bohr would no doubt have put it prediction is very easy particularly when it's about the past thank you very much thank you very much indeed ladies and gentlemen Sarah performed what she acknowledged to be the unnecessary task of introducing herself to you and also to our speaker to you I will perform the necessary task of introducing myself Nigel Rodding, a partner in Freshfield's The Proud supporters of this event Lord Newburger very kindly indicated that he would take one or two questions from the floor I hope there are some takers it might spare me the task of having to come up with one myself please don't feel that you need to hold high judicial office or a doctorate to qualify but don't feel that that would be an impediment either let's hope there is somebody who Joshua, thank you