An English Judge in Europe

Abstract

Judges today have to apply case law from the two European supranational courts in Strasbourg and Luxembourg as well as domestic law. Lord Denning graphically compared the growth of European Union law to “tidal water rushing up our estuaries”. The same point can be made about Strasbourg case law. This article makes the neutral assumption that the inundation continues. Criticism of our flood defences has been intense but do we have a clear idea of the new European legal order? We tend to assume that the relationship between domestic and supranational courts is just like that between domestic courts, when it is far more complex – much more like an ill-fitting jigsaw in some respects. When we analyse that relationship, we can deal with the most topical question: what checks and balances exist or could reasonably be put in place in the relationship between national courts and supranational courts in Europe? In this article, I seek to outline some of the steps that could be taken to help ensure a balanced relationship between national and supranational courts.