President of the Supreme Court takes on Denning’s ‘flowing tide’ view
The president of the highest court in the land has challenged the views of controversial judge and law student favourite, Lord Denning, on the English common law.
In an impassioned speech made in Singapore, Supreme Court-heavyweight Lord Neuberger reflected on how recent European influences — namely the European Union and the European Convention on Human Rights — are only the latest influences on the common law.
Politely introducing Denning as “the great 20th century English judge”, Neuberger went on to quote the former Master of the Rolls and his less than complimentary opinions on the effects of EU law:
[T]he flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.
This view — that the common law has somehow lost its purity thanks to the EU — has not washed well with Neuberger. The Oxford-educated Supreme Court justice commented:
Despite the fact that Lord Denning was one of the three or four most influential common law judges of the 20th century, it seems to me that that notion, like his memorable image of the common law being submerged by an inexorable tide of European law, rests, I suggest, on a misunderstanding.
Instead, Neuberger argued, the common law has always been the product of many different sources (such as the influences of equity which came from Rome, or the common law process of discovery which came from church courts (who knew?)).
He told his audience at the National University of Singapore:
Rather than dwelling on the idea that English law was being submerged by a torrent of European law, Lord Denning would have been nearer the mark if he had focussed on how the common law might be invigorated by yet another external influence in a thousand years of external influences.
In other words: it’s no biggie, Denning.
Steering clear of divulging his own in-or-out views, Neuberger also told his audience that if Brexit goes ahead, EU law and the Convention will hardly be an influence at all, more like a “bliplet”.
You can read Lord Neuberger’s full speech here: