I. INTRODUCTION
The common law legal tradition, as Simpson succinctly defines it, is the name given to the one of the major world legal traditions which evolved in England after the Norman Conquest.Footnote 1 It represents, therefore, ‘a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught’.Footnote 2 It is also one which unites countries as diverse as Australia, England and Wales, Ghana, India, Jamaica, Malaysia, New Zealand, Nigeria, Singapore and the United States. For leading comparative lawyers Zweigert and Kötz, the factors of a shared history, common mode of thought in legal matters, similar institutions and use of legal sources, and a shared ideology serve to identify a distinct legal tradition which distinguish it from ‘rival’ legal families such as those based on the civil law, Islamic, Hindu or indigenous legal traditions.Footnote 3 Commentators equally note that the part of the strength of the common law tradition rests on its hostility to ‘foreign civil law’, which can be traced back to the early rejection of the continental reception of Roman law in favour of a highly developed domestic system of law.Footnote 4 Zweigert and Kötz, for example, juxtapose the common law with its focus on case law and preference for experience over theory with the systematic approach of the civil law marked by a tendency to use abstract legal norms.Footnote 5 Private law in common law systems may thus be characterized as a law of practice, not theory, with the judge playing a particularly significant role.Footnote 6 Holmes famously stated that the logic of the common law is not necessarily logic but experience, adding that, as a result, the necessities of the time, the prevalent moral and political theories and intuitions of public policy play a greater role than purely deductive reasoning.Footnote 7
However, this straightforward common law/civil law divide has become increasingly blurred in recent years. English judges have, since 1973, been obliged to accept the supremacy of EU law and, since 2000, have been required by statute to ‘take into account’, inter alia, decisions of the European Court of Human Rights. While it arguably took a direct clash of European and national policy in the Factortame litigation in the 1990sFootnote 8 for the English courts to accept fully the supremacy of EU law, it is now widely acknowledged to impact on all areas of UK law, including, of course, private law. Indeed, proposals by the European Parliament and European Commission to harmonize all (or part) of European private law threaten to take this a step further, creating a new European private law, albeit confined until recently to a proposal for an (optional) common European sales law.Footnote 9 European human rights law also provides a distinct source of law, both in terms of judgments against the UK from the European Court of Human Rights,Footnote 10 but, more significantly, with the enactment of the Human Rights Act 1998 which, at section 6, requires public authorities (including the courts) to act in a manner compatible with the European Convention on Human Rights.
Increased European influence on English law may be contrasted with a parallel reduction of contact with other common law jurisdictions. The end of colonialism, the demise of the Privy Council's role in ‘unifying’ the laws of the Commonwealth and the enactment of legislation at a national level following independence have led increasingly to differences in the laws of common law States. It is inevitable that States will develop their own laws and that new alliances will occur. Merryman and Pérez-Perdomo expressly recognize that it would now be inaccurate to suggest that all common law jurisdictions have identical legal institutions, processes and rules.Footnote 11
In the light of these developments, this article will seek to examine to what extent Europeanization, in the broad sense of EU and European human rights law, has changed how English courtsFootnote 12 use comparative law. My focus will be on private law, here the law of contract and tort.Footnote 13 While a number of studies have focused on constitutional law (and public law more generally),Footnote 14 few commentators have considered the interrelationship of European and English private law at a domestic level. And yet contract and tort law represent areas of law which are seen as exemplars of common law reasoning in which judges continue to play a significant role despite increasing legislative intervention. It is also an area where there is a well-established history of cross-citation across the common law world. This study, therefore, addresses a distinct topic: to what extent has greater exposure to European sources, in circumstances where the UK legislature has required the courts to a greater or lesser extent to defer to non-common law sources, led to a greater willingness to rely on EU and European human rights sources in developing English private law? In so doing, I will examine case-law development in private law, but also support my analysis with reference to a number of recent empirical studies, which have examined the practice of the UK Supreme Court and English Court of Appeal by means of quantitative and qualitative data. Have, therefore, these European sources led to a reconfiguration of the common law legal family, as the parent legal system enters a second ‘marriage’, giving rise to new progeny: a private law of contract and tort containing rights based on breach of EU and (European) human rights law or even a newly formulated European private law? If so, where does this leave the traditional relationship between common law courts in which the courts have long found inspiration, support and guidance through citation of case law from other common law jurisdictions? Jaremba has argued that ‘all European national judges, regardless of their specialization and position in the national judicial architecture, are EU law judges’,Footnote 15 but, in this article, I will seek to identify how the courts in reality have responded to such changes and what insight this may give us into the nature of judicial reasoning and the English courts' treatment of comparative law.
II. THE EUROPEAN DIVIDE: EU AND EUROPEAN HUMAN RIGHTS LAW AS INSTRUMENTS FOR CHANGE
It is undeniable that the ties which bind the common law legal familyFootnote 16 have changed over time. The abolition by many States of the right of appeal to the Judicial Committee of the Privy Council in London has led to the organic development of law at a local level. While, in the 1930s, the Judicial Committee of the Privy Council was said to be the final court of appeal for more than a quarter of the world, today a total of only 27 Commonwealth countries, UK overseas territories and crown dependencies use the JCPC as their final court of appeal. Canada abolished rights of appeal to the Privy Council in London in 1949,Footnote 17 followed by many other common law countries, including Australia in 1986Footnote 18 and New Zealand in 2003.Footnote 19 Such developments encouraged the growth of ‘local’ versions of the common law, adapted to that country's own characteristics and the customs of its people.Footnote 20 National supreme courts no longer feel obliged to follow authority simply on the basis that it originated in the highest UK court.Footnote 21 This does not signify a failure to consider other common law jurisdictions, but that such authority is only ‘persuasive’ and will be considered on its merits.Footnote 22 In the words of a leading Australian judge, ‘There is … every reason why we should fashion a common law for Australia that is best suited to our conditions and circumstances … The value of English judgments, like Canadian, New Zealand and for that matter United States judgments, depends on the persuasive force of their reasoning.’Footnote 23 It is also clear that a stage has been reached whereby the UK Supreme Court is prepared to be ‘persuaded’ by other common law courts in framing legal principle rather than expecting other Commonwealth courts to follow its lead.Footnote 24
Patrick Glenn has attributed the survival of the common law tradition to its ‘looseness’. He argues that its very amorphous nature has allowed it to adapt and accept diversity, having long worked with different legal orders.Footnote 25 As Lord Lloyd commented in Invercargill v Hamlin,Footnote 26 ‘[t]he ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root, is not a weakness, but one of its great strengths. Were it not so, the common law would not have flourished as it has, with all the common law countries learning from each other.’Footnote 27
The rise of statute law has also served to accentuate divisions at a national level. Major statutory initiatives such as the New Zealand Accident Compensation Scheme, which, for over 40 years, has replaced tort provisions relating to personal injury and death with a no-fault compensation scheme,Footnote 28 and legislative reform of civil liability in all Australian jurisdictions following the Ipp Report on the Law of Negligence,Footnote 29 have rendered it more difficult to reason by analogy. Statutes, as Lord Bingham has observed, in the absence of similarity, render comparison of limited utility.Footnote 30 Private law will, therefore, as in all areas of law, have to respond to the ‘higher level’ policy choices of the legislator; the shaping of which are not within the power of the judiciary. Yet, while statutory intervention and judicial activism at a domestic level have led to fragmentation, a core of judge-made law does remain. This continues—albeit loosely—to bind the jurisdictions together.
It is European law which disturbs this gradual restructuring of the common law and possesses the greatest potential for the creation of division within the common law family. EU law derives primarily from the civil law tradition and the decisions of its court (the Court of Justice of the European Union (CJEU)) are binding on UK courts. As supranational law, EU law challenges the traditional groupings of legal families and introduces a new alliance of States based on common European social, political and economic goals. Combined with that other great European influence—the European Convention on Human Rights whose case law is also closer in style to civil rather than common law—it becomes clear that the UK common law is now subject to influences which do not affect the majority of the common law world and which affect not only public law, but the law of contract and tort as well. The nature of these influences will be examined below.
A. Europe and the Common Law: Directives, Regulations and Beyond
Despite the absence of any formal basis in the Treaty of Rome, the EU Treaties have been found to create a distinct legal order and one which, importantly, gives rights to individual citizens which they can pursue in the courts of Member States.Footnote 31 In 1973, the United Kingdom joined the European Union (then the European Economic Community) and, by virtue of the European Communities Act 1972, European Union law is given legal effect within the national legal system.Footnote 32 On this basis, national courts are required to apply EU law, subject to review by the CJEU itself.Footnote 33 Provisions of EU law that are directly applicable or have direct effect are automatically enforceable in the UK without the need for any further enactment.Footnote 34 The doctrine of indirect effect further requires that national courts should interpret existing legislation in line with EU law.Footnote 35
Article 288 TFEU further provides for EU legislation: to exercise the Union's competences, EU institutions may adopt regulations, directives, decisions, recommendations and opinions. In private law, intervention has primarily been by way of directives and, noticeably, more focussed on contract law than the law of tort. A number of reasons may be identified for this policy. First, the European Commission's objective of boosting the internal market and removing barriers to cross-border trade has led to a number of initiatives which have as their goal economic growth by means of improvement to existing modes of contracting.Footnote 36 Soft law initiatives have also shown a preference for contract law models, including the well-known Principles of European Contract Law (PECL).Footnote 37 Equally, concern to improve consumer protection across the EU has led to directives which seek to protect the consumer as the weaker party to the contract and, in particular, to enable consumers to make informed decisions as to when it is in their interests to contract.Footnote 38
From the perspective of English contract law, perhaps the best known directives are Directive 93/13/EEC on unfair terms in consumer contractsFootnote 39 and Directive 1999/44/EC on the sale of consumer goods and associated guarantees,Footnote 40 although contract textbooks may also briefly refer to the Package Travel, Package Holidays and Package Tours DirectiveFootnote 41 or the Unfair Commercial Practices Directive.Footnote 42 Most recently, the 2011 Consumer Rights Directive has, as of 13 June 2014, been implemented in Member States, replacing Directive 97/7/EC on distance contracts and Directive 85/577/EEC on off-premises contracts.Footnote 43 These measures have brought changes to English contract law which go beyond the superficial and technical. For example, the 1993 Directive, transposed into English law by means of the Unfair Terms in Consumer Contracts Regulations 1994 (now 1999),Footnote 44 introduced, to the consternation of many English contract lawyers at the time,Footnote 45 a test of good faithFootnote 46 to determine the enforceability of unfair terms in standard term consumer contracts. While the 1999 Consumer Sales Directive was implemented by a number of amendments to existing statutes,Footnote 47 it introduced a range of new consumer-friendly remedies in addition to those already existing in UK law.Footnote 48 Such directives have brought changes to English contract law based on EU, rather than UK or Commonwealth, legislative policy and are not necessarily consistent with existing common law developments. Inevitably, they serve to divide EU Member States from the rest of the common law world.Footnote 49
In tort law, intervention has been less dramatic. Core tort law principle remains primarily for the domestic courts and only a limited number of directives have brought changes to national law.Footnote 50 The best-known example of change by directive remains that of Council Directive 85/374/EEC, commonly known as the Product Liability Directive,Footnote 51 which imposes strict liability on manufacturers for damage caused by their defective products. In A v National Blood Authority,Footnote 52 the English court recognized that Part 1 of the Consumer Protection Act 1987 must be interpreted in the light of the 1985 Directive, following the guidance of the ECJ in European Commission v United Kingdom.Footnote 53 The Directive is also a maximum harmonization directive from which no divergence is permitted.Footnote 54 The Product Liability Directive may be seen as symbolic in highlighting the potential impact of EU law; in this case, supplementing the classic common law authority of Donoghue v Stevenson Footnote 55 with EU-sourced strict liability. Further, EU law has shown itself capable of creating new areas of tort law, such as State liability for breach of EU law (Francovich liability).Footnote 56 While, as yet, few successful claims have been brought under this head of liability,Footnote 57 and, as an area of law, it remains under-conceptualized,Footnote 58 it strikes at the heart of domestic legal system, holding both the State and its courtsFootnote 59 subject to EU law and requiring the provision of compensation where a sufficiently serious breach of EU law is shown.
By virtue, therefore, of membership of the European Union, the UK and Ireland now find themselves in the curious position of being minority systems in a Union of States dominated by the civil law legal tradition.Footnote 60 More recently, UK and Irish lawyers have found themselves faced with a number of ambitious projects which seek to harmonize some or all aspects of the private law of European Member States.Footnote 61 Since 1989, the European Parliament has been calling for a European Code of Private LawFootnote 62 and in more recent years, the European Commission has commissioned a number of major research projects which have produced a Draft Common Frame of Reference,Footnote 63 which provides a model for a European Civil Code,Footnote 64 and led a public consultation on the future of European Contract Law in which one option was again the introduction of a European Civil Code.Footnote 65 The latest proposal for a regulation on a Common European Sales LawFootnote 66 would have introduced into every Member State an optional common European law governing cross-border contracts for the sale of goods and digital content. While there has been less work in other areas of private law, research groups, such as the European Centre of Tort and Insurance LawFootnote 67 in Vienna, continue to engage in studies to identify common principles of tort law across Member States. Books VI and VII of the Draft Common Frame of Reference equally put forward proposed common European rules of tort and unjust enrichment, albeit with the more civilian nomenclature of ‘non-contractual liability arising out of damage caused to another’ and ‘unjustified enrichment’.
Subject to any drastic political decision by the UK to exit the EU, it seems clear that EU law will continue to impact on UK private law, notably (but not solely) in the area of consumer protection. Moreover, the UK courts are required to be conversant with a large (and expanding) body of case law which they must apply when relevant. It is not, therefore, a case of considering whether UK law should evolve in a similar manner to that of Australia or Canada, but of the UK complying with EU law, subject to the supervision of an external court: the CJEU.Footnote 68
B. European Human Rights and the Common Law
From 2000, however, UK private law has faced a further challenge: the enactment of the Human Rights Act 1998 (HRA). European human rights law may be described as having ‘supra-national aspects' in that, as a signatory to the Convention, the UK is bound by judgments to which it is a party, but it is the enactment of the HRA which has made a significant difference to UK law and raised difficult questions about the relationship between the courts, Parliament and the European Court of Human Rights.Footnote 69 Section 3(1) provides that ‘so far as it is possible to do so’, the courts should interpret primary and subordinate legislation in a Convention-compliant way.Footnote 70 This will apply to legislation in the area of private law and section 3 has been used by the courts to construe legislation purposively to reach a convention-compliant result.Footnote 71 This gives the UK courts a ‘constitutional’ role in examining the Convention-compatibility of legislation.Footnote 72 Further, section 2(1) of the Act requires the court, in determining a question which has arisen in connection with a Convention right, to ‘take into account’ judgments of the ECtHR. Section 6(1) also provides that it is unlawful for a public authority to act in a non-Convention-compliant way and sections 7 and 8 provide a cause of action by which victims may seek a remedy. Individual litigants may thus bring an action against a public authority which has violated one of the Convention rights contained in Schedule 1 of the Act.
In both contract and tort law, early cases suggested that these measures might lead to changes to existing law, triggered to a large extent by the ECtHR decision in Osman v UK.Footnote 73 In this case, the Strasbourg court had been prepared to find a breach of Article 6 ECHR (right to a fair trial) where a negligence claim against the police had been struck out for reasons arising from substantive law. While the Strasbourg court subsequently accepted in Z v UK Footnote 74 that this represented a misunderstanding of English law, the shadow of Osman remained. In Wilson v First County Trust Ltd (No 2),Footnote 75 for example, the Court of Appeal, influenced by Osman, was prepared to make a declaration of incompatibility in relation to section 127(3) of the Consumer Credit Act 1974, which placed an absolute bar on the court from enforcing an agreement which had failed correctly to state the amount of credit, on the basis that this amounted to an infringement of both Article 6 and Article 1 of Protocol 1, ECHR (right to protection of property). While the House of Lords in Wilson, giving judgment two years after Z v UK, was in no doubt that Article 6 could no longer be said to permit the claimant to challenge the provisions of the Act when the section in question merely restricted the substantive rights of the creditor and did not bar access to the court,Footnote 76 their Lordships were divided as to the correct interpretation of Article 1 of Protocol 1, although all agreed that there had in fact been no violation in this case.Footnote 77 Subsequent case law has yet to resolve this point.Footnote 78 McKendrick has commented that: ‘Convention rights may yet turn out to be a time bomb ticking away under the law of contract and private law generally.’Footnote 79
In contract at least, the scope of Convention rights is limited in that their primary focus is not the protection of economic rights.Footnote 80 In contrast, the very nature of Convention rights—which protect fundamental rights to life, freedom from torture, liberty etc—suggests a potentially greater role in tort law. The challenge for the courts may be seen as twofold. First, public authorities face claims under section 7 of the HRA 1998 for breach of Convention rights (with a potential remedy under section 8 in damages). Secondly, under the much debated doctrine of ‘indirect horizontal effect’,Footnote 81 the courts, as ‘public authorities' under section 6(3) of the Act, arguably have an obligation, or at least should attempt,Footnote 82 to interpret the common law in a Convention-compliant manner. This has led to decisions in which the courts have reconsidered the rules of standing in private nuisanceFootnote 83 and the relationship between the tort of defamation and Article 10 ECHR.Footnote 84 Following Osman, the courts also became more reluctant to strike out claims for negligence against public authorities.Footnote 85D v East Berkshire Community NHS Trust Footnote 86 demonstrated that even established UK decisions, such as the House of Lords ruling in X v Bedfordshire CC Footnote 87 (that social services do not owe a duty of care when making a decision about whether or not to take a child into care) could be subject to review post-HRA, despite the overt discussion of policy and the roles of public authorities, the State and individual citizens in that case.Footnote 88 More recently in Rabone v Pennine Care NHS Foundation Trust,Footnote 89 the Supreme Court accepted that the inability of parents of an adult voluntary patient under the care of the defendant trust to claim for bereavement damages under the Fatal Accidents Act 1976 would not prevent them from obtaining comparable damages under the Human Rights Act 1998.Footnote 90 Equally, in the controversial case of Smith v Ministry of Defence,Footnote 91 which involved allegations that the Ministry of Defence had failed properly to equip and train soldiers in Iraq, the Supreme Court refused to strike out both the claim in negligence and that under the Human Rights Act 1998 and chose to construe narrowly the concept of combat immunity in negligence.
Indirect horizontal effect presents the English courts, therefore, with an opportunity to utilize Convention rights as a springboard for change. While this would further increase the divide between common law jurisdictions, it would move the English common law closer to a Convention-based framework of rights. It would, however, require the English courts to utilize European, not common law, analogies in the development of domestic private law.
III. EMPIRICAL STUDIES CONCERNING THE USE OF EUROPEAN AND COMMONWEALTH SOURCES BY THE UK COURTS
The above analysis indicates that legislative and political developments have placed the UK courts in a position where there are mandatory requirements to comply with EU law and, at least, to ‘take into account’ the case law of the European Court of Human Rights. Further, UK judges, such as Lord Steyn, have commented that the integration of the UK into the legal culture of Europe continues to grow year by year.Footnote 92 Can we therefore identify a trend in which the English courts are increasingly citing European case law rather than that of other common law jurisdictions in developing national law?
Four recent empirical studies have examined the citation practice of the UK Supreme Court and English Court of Appeal in the period following the Human Rights Act 1998.Footnote 93 Despite the fact that these are broad studies which do not focus on the issue of Europeanization as such, they do provide a valuable insight into the practice of the English courts and the extent to which, post-2000, it is possible to discern a greater willingness to respond to EU and European human rights source material. Bobek, Gelter and Siems all focus on the citation practice of a number of European courts; for Bobek that of England and Wales, France, Germany, the Czech Republic and Slovakia,Footnote 94 while Gelter and Siems address cross-citation in matters of civil and criminal law between the supreme courts of 10 European countries, including the English Court of Appeal.Footnote 95 Stanton's study, in contrast, examines the use of comparative law by the House of Lords and Supreme Court in tort cases between 1990 and 2013.Footnote 96 The Mak study offers an alternative perspective based on qualitative research,Footnote 97 consisting of interviews with members of the UK Supreme Court and the Supreme Court of the Netherlands in 2009.Footnote 98
Despite their breadth, these studies provide a number of revealing insights into the practice of the English courts. First of all, where EU law is supreme or the parties rely on the Convention rights in their claim, the courts inevitably will make reference to EU and European human rights law. Bobek notes that in relation to cases where reference to such sources is mandatory, there is now abundant citation of ‘European’ material.Footnote 99 He observes, however, that this is not always undertaken with enthusiasm.Footnote 100 Yet, when the courts have a choice, all four studies found that the English courts continue to make reference to common law sources in preference to those of other civil law jurisdictions.Footnote 101 For Stanton and Mak, the use of civil law in cases such as Fairchild v Glenhaven Funeral Services Ltd & Ors Footnote 102 and White v Jones,Footnote 103 celebrated by comparative lawyers such as Markesinis,Footnote 104 owes more to the enthusiasm and linguistic ability of judges such as Lords Bingham and Goff than any sea-change in court practice.Footnote 105 In contrast, citation of other common law jurisdictions has continued, with the courts showing a particular preference for jurisdictions such as Australia, Canada, New Zealand and the United States,Footnote 106 with more limited reference to South Africa (a mixed jurisdiction but with historic ties to the UK), Ireland, Hong Kong, India and Singapore.Footnote 107
The studies also suggest a number of factors which might explain this continued reliance on common law jurisdictions in private law. Three key issues may be identified: ease of access to resources, prestige/reputation and cultural similarity.Footnote 108 These factors will be examined in more detail below.
A. Accessibility of Resources
Due to advances in information technology, the courts now have ready access to a multitude of judgments, legal commentary and academic articles from many jurisdictions, but the obstacle of language remains. For a UK judge, sources in the English language using familiar legal terminology and following similar rules of procedure will be far more accessible and readily understandable than material dependent on the individual judge's linguistic ability or access to a good translator. Use of mainly common law sources may, indeed, be justified as cost-efficient. Stapleton, for example, argues that, given finite resources, a rule of thumb is needed in choosing comparative jurisdictions, and other common law jurisdictions which retain a close affinity, politically and culturally, with the UK seem the logical choices.Footnote 109 Practical concerns, therefore, including the case load of the court, the availability of research assistants and matters of time and expense will discourage non-mandatory reference to European sources.Footnote 110 While it may be argued that EU and European human rights law, in contrast to the legal systems of continental Europe, is generally accessible in English, the terminology used and style of judgments and legislation remain unfamiliar to an English court. Obstacles, therefore, remain. As Supreme Court justice Lord Mance has observed, using non-common law sources ‘requires a level of immersion in, or at least understanding of, foreign law or legal process which is usually difficult to achieve’.Footnote 111
B. Prestige
It would be wrong, however, (and unduly critical of UK judges) simply to attribute the continued reliance on common law sources to one of linguistic limitations and cost. It is clear that the UK courts continue to grant particular respect to the Supreme Courts of certain Commonwealth jurisdictions and the United States. Lord Collins, for example, remarked recently that ‘[i]t is highly desirable that at this appellate level, in cases where issues of legal policy are concerned, the court should be informed about the position in other common law countries'.Footnote 112 The studies provide support for the view that the retention of common law cross-citations owes much to mutual respect between the relevant courts. Bobek sums it up as follows: ‘The unity of the common law can thus be perceived as a political dictum concerning the circle of preferred advisable comparisons within a selected group of English-speaking countries.’Footnote 113 Courts which are believed to possess high-quality legal reasoning and share common political and ideological goals are therefore perceived as ‘safe’ and reliable comparators. In particular, factors such as judicial independence and respect for liberal democracy and the rule of law are important.Footnote 114 On this basis, when using comparative law to add lustre to their judgments, common law judges will be influenced not only by relevance, but which courts are considered by the legal community to be the best comparators.Footnote 115
C. Cultural Similarity
The final factor identified in the studies is that of a common legal culture. Lord Neuberger in a recent speech went so far as to state that ‘[t]he Commonwealth … provides us with an alternative international organisation or club to the EU … As a UK judge, I can and do sit, and feel at home, in the Hong Kong Court of Final Appeal, that could not be said about any European court, other than Ireland.’Footnote 116 Such views are inevitable given the distinct historical backgrounds, training and tasks of the common law and continental European judiciary.Footnote 117 Lawyers will have a tendency, which derives in part from the years of training needed to qualify to practice, to favour their own particular legal system and are likely, therefore, to possess a subconscious bias towards systems which are close to their own cultural, social, economic, political and even personal background.Footnote 118 In contrast, the challenge of mastering a new legal culture is self-evident: EU and European human rights law confront judges with unfamiliar forms of reasoning and conceptual frameworks which they are forced, to a certain extent, to integrate into their own legal language.Footnote 119 It is not, therefore, simply a question of reading new sources of law, but understanding the cultural framework and context from which they derive.
On this basis, the existence of a common language, accessible materials, statutes and cases in a familiar style, together with the perception of a shared culture and ideology, will all encourage judges to remain within the common law family and discourage the courts from engaging to a greater extent with EU and European human rights sources in private law. These factors also explain why, despite clear differences in contract and tort law, the United States remains at the top of the list of useful comparisons due to the high regard with which its courts are held.Footnote 120 Nevertheless, such adherence to the common law family does possess disadvantages. It may lead courts to miss possible options for reform developing within the European legal community or possible routes for legal development. Watson has argued that a bias for the familiar and accessible and the dominance of case law over legislation may lead lawmakers to opt for common law rules regardless of whether the rule in question is the ‘best’ rule for the society in question.Footnote 121 It may also lead to ‘ornamental’ comparative law, where comparisons are cherry-picked to give weight to judicial argument rather than guidance. Flanagan and Ahern in their study noted a tendency for citation opportunism, finding evidence of use of comparative law to demonstrate membership of an emerging (elite) international judicial ‘guild’.Footnote 122 Further, at a time when the courts are required to engage with EU and European human rights sources, which form part of the core curriculum for any lawyer's training, one might question whether traditional adherence to common law sources can remain unchallenged.
In the next section, I will examine to what extent the judicial attitudes identified in the empirical studies discussed above map onto recent legal development. Have the courts moved towards greater recognition of European law (notably European human rights law) as a positive force for change or have traditional attitudes prevailed, confining EU and European human rights law to their own particular context?
IV. THE LIMITS OF EUROPEANIZATION
The results of these empirical studies will not surprise anyone who is familiar with UK court judgments, but do raise significant questions as to future practice. Assuming continued membership of the European Union and the existence of some form of human rights legislation requiring the courts to ‘take into account’ the case law of the European Court of Human Rights, will English private law finally start to diverge from other common law jurisdictions rendering the current adherence to common law referencing defunct? In particular, will projects to harmonize some or all of European private law lead to fundamental changes to the UK's place in the common law family? It is submitted that regardless of the changes introduced as a result of the European Communities Act 1972 and Human Rights Act 1998 and proposals for harmonization being advocated by the European Commission and Parliament, there are three main reasons why this is unlikely to occur. The first is that although harmonization has been much discussed at EU level, measures remain limited in scope and largely sector-specific. Further, the legislative framework within which EU and European human rights law has been introduced and the way in which the courts have interpreted the relevant law have, in practice, operated to minimize the intrusion of these sources of law into core common law reasoning. These three factors will be examined in more detail below.
A. Limited EU Harmonization
The European Commission and Parliament continue to support measures to harmonize private law, but obtaining agreement on such measures has proven problematic. Indeed, some commentators have questioned the very competence of the EU to harmonize private law.Footnote 123 The 2011 proposed regulation on a Common European Sales Law was, after much debate, finally withdrawn in December 2014. Equally, the failure of the Commission to obtain agreement on a wide-ranging Consumer Rights Directive,Footnote 124 which would have harmonized the main directives forming the acquis communautaire, indicates again the difficulties of gaining support for such broad initiatives.Footnote 125 Further, tort law has yet to receive the attention that contract and consumer private law has received at EU level. The focus of the Commission on improving the internal market lends itself to contract, rather than tort, law reform. While this may change, it again serves to lessen the threat of EU intervention to national tort law norms. Private law harmonization, therefore, at present provides little threat to national contract and tort law autonomy.
B. The Legislative Framework
The nature of the legislation which introduces EU and European human rights law into English law has also served to diminish their impact on national law. Importantly, the provisions in question grant the national courts a considerable degree of discretion. With respect to EU law, in private law, the most frequently used legislative vehicle is that of the directive. Article 288(3) TFEU provides that: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods' (emphasis added).Footnote 126 In other words, States are given a discretion how to transpose directives into national law, both in terms of wording and the means by which this is achieved. Practice has shown that the UK legislator has primarily favoured secondary legislation as a means to implement directives, under the general power granted to ministers under section 2(2) of the European Communities Act 1972,Footnote 127 leading either to stand-alone regulations or amendments to existing legislation, for example the addition of Part 5A to the Sale of Goods Act 1979. The Product Liability Directive provides a rare example of a directive being transposed in a statute, albeit in Part 1 of the broad-ranging Consumer Protection Act 1987 whose primary aim is to introduce national consumer regulatory measures. The key issue, however, is that transposition by means of distinct sets of regulations or sections of a statute does not serve to integrate these provisions into national law, but rather treats the new rules as sui generis, existing in addition to the common law. This reflects government legislative policy which seeks to minimize the impact of EU legislation by favouring a process of copying out directives into specific pieces of legislation. Principle 5(a) of the Guiding Principles for EU Legislation provides that: ‘When transposing EU law, the Government will ensure that (save in exceptional circumstances) the UK does not go beyond the minimum requirements of the measure which is being transposed.’Footnote 128 The policy, therefore, seems one of containment rather than integration.
Further, while it may be argued that the effective transposition of EU law into national law is subject to a system of sanctions provided by Articles 258–260 TFEU and supported by the obligation for courts of final appeal to refer questions of interpretation to the CJEU under Article 267(3) TFEU when the answer is not clear,Footnote 129 in reality, this enforcement procedure is less than strict. While the Commission may assess whether the States have breached EU law under Article 258 TFEU and fine for serious and persistent breaches under Article 260 TFEU, relatively few actions are brought. The Commission prefers to resolve such issues by negotiation,Footnote 130 with legal proceedings being seen as a matter of last resort. Equally, decisions such as European Commission v United Kingdom Footnote 131 (concerning the UK transposition of Article 7(e) of the Product Liability Directive) have shown the CJEU willing to adopt a conciliatory approach to any flaws in transposition. Further, the Article 267 TFEU preliminary reference procedure may be (rightly) criticized for failing in many cases to provide clear guidance, and indeed being too willing at times to defer matters to the national court when guidance is needed.Footnote 132 Many national courts (including the UK) have also proven somewhat reluctant to refer matters to the CJEU and are able to rely on the ‘acte clair’Footnote 133 doctrine even in the face of dissenting judgments.Footnote 134 The net result is that national courts are able to keep EU intervention to a minimum.
In terms of human rights, section 2(1) of the HRA 1998 also provides for discretion: the courts must simply ‘take into account’ decisions of the ECtHR. Inevitably, there has been much discussion as to what this requirement actually means.Footnote 135 Case law has indicated that while the Supreme Court reserves the right to refuse to follow Strasbourg jurisprudence and follow its own precedents,Footnote 136 the courts, in the absence of special circumstances, should follow any clear and constant jurisprudence of the ECtHR.Footnote 137 Lord Bingham in Ullah famously remarked that the duty of the national court ‘is to keep pace with the Strasbourg jurisprudence as it evolves over time, no more, but certainly no less',Footnote 138 but this does not resolve to what extent the English courts may go beyond such case law when there is no clear ECHR guidance and, indeed, the Supreme Court has recently expressly left open the question whether the Ullah principle should be modified or reconsidered.Footnote 139 While public lawyers (and indeed judges)Footnote 140 continue to debate the nature of the section 2 obligation, the reality is that ECtHR case law is by its very nature not inclined to provide clear and definitive guidelines for national courts. Decisions are often cast in very broad principles of uncertain application and often factually specific.Footnote 141 Further, the nature of the Convention as a ‘living instrument’, whose meaning evolves in response to changing social conceptions common to the democracies of Europe, signifies that the content of human rights will change over time.Footnote 142 This is unproblematic for a court to which the doctrine of precedent does not apply, but perhaps of more concern to a national court attempting to ascertain the exact meaning, and hence application, of Convention rights. Equally, it is important to remember that the Strasbourg court is not a superior court in the manner of the CJEU and indeed, the Court has been careful, through the development of doctrines such as subsidiarityFootnote 143 and the margin of appreciationFootnote 144 to develop a degree of consensus with national courts. The very nature of the HRA interpretative duties, therefore, give the courts some leeway how (and to what extent) to integrate European human rights into domestic law.
C. The Practice of the English Courts: Separating European Law from Ordinary Private Law Principles
On this basis, the legislative framework and the practice of the CJEU and ECtHR have served to give the national courts a level of discretion in interpreting EU and European human rights law and in determining the extent to which change is necessary to existing national rules. This does not, of course, signify automatically that the courts will use this discretion to minimize the influence of European sources; merely that they can. While the courts are obliged to apply legislation which has been approved by Parliament, where there is uncertainty or simply a gap, national courts will find themselves in a position where choices must be made. Whilst in the field of contract law, EU law, in particular, has brought changes to matters as fundamental as implied terms of quality and remedies in consumer sales contracts and the striking out of unfair terms in standard term consumer contracts, it is noticeable that the courts have not generally chosen to apply these legal rules outside these contexts. It is not surprising, therefore, that the Unfair Terms Directive was transposed into UK law as a distinct set of regulations existing in addition to existing case law and legislation or that its test based on ‘good faith’ has yet to adopted more generally by English contract law.Footnote 145 Equally, Part 1 of the Consumer Protection Act 1987 has been treated simply as a specific rule of strict liability applying to manufacturers.Footnote 146 Such practice also reflects the deep-rooted predisposition in English law to treat statutory rules as lex specialis, rather than a source of general legal principle.Footnote 147
In terms of human rights, however, the doctrine of indirect horizontal effect does give rise to the possibility of greater judicial intervention, reshaping domestic private law in a manner consistent with Convention rights. While the ECHR has had limited impact on contract law, developments in privacy law following the enactment of the HRA 1998Footnote 148 indicate the ability of the courts to generate new rights in the law of tort (here the ‘tort’Footnote 149 of misuse of private information) whose content will be shaped by Convention rights (here Articles 8 and 10, ECHR).Footnote 150 Yet, when litigants started bringing claims under section 7 of the HRA, it became clear that privacy law (and to a lesser extent defamation)Footnote 151 would be treated as exceptional cases. In contrast to privacy law, where it was commonly accepted that a gap existed in the protection of victims which needed to be filled,Footnote 152 and to a lesser extent defamation in which the clash between freedom of expression and the right to protect one's reputation may be seen as inherent to the tort, changes to the well-established principles of domestic tort law would have required the courts to make policy choices as to the very nature of tort law rights. Despite the early cases mentioned in section II(b) above, which had suggested that the courts might be willing to intervene, ultimately the courts opted for a more conservative approach. In terms of claims against public authorities, therefore, claimants may now bring a claim under section 7 HRA and/or the law of tort, but the two claims will be regarded as distinct. This is expressed clearly by the majority of the House of Lords in the leading case of Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of Sussex:Footnote 153
the common law, with its own system of limitation periods and remedies, should be allowed to stand on its own feet side by side with the alternative remedy. Indeed the case for preserving it may be thought to be supported by the fact that any perceived shortfall in the way that it deals with cases that fall within the threshold for the application of the Osman principle can now be dealt with in domestic law under the 1998 Act.Footnote 154
On this basis, the majority refused to reshape negligence liability in line with Article 2 ECHR and advised litigants to pursue such claims under the HRA 1998.Footnote 155
While cases such as Rabone v Pennine Care NHS Foundation Trust Footnote 156 and Smith v Ministry of Defence Footnote 157 indicate that the line between tort and human rights claims may not always be easy to draw and that the English courts may indeed choose to develop ECHR law beyond that already stated by the ECtHR, Van Colle does represent a policy choice by the English courts not to distort the character of common law torts by developing them in the light of Convention rights.Footnote 158 This approach is supported by Nolan, who argues that convergence of the tort of negligence with human rights liability would undermine the former's coherence, weakening its structural underpinnings and would cut across its core principles.Footnote 159 Wright notes that the ability of litigants to bring actions under sections 7–9 HRA has taken the pressure off the need to expand the common law and led to a sharper division between public and private law spheres.Footnote 160 In other words, the English courts have made the choice that the development of the common law of tort should remain within the remit of the domestic court. HRA claims will produce their own line of jurisprudence, but it will exist alongside, not in conjunction with, the English law of tort.
On this basis, where cases do not involve matters of EU law or a specific claim under the HRA 1998, English judges will continue to treat contract and tort law as products of the common law legal tradition to which, naturally, reference to other common law jurisdictions may be helpful in developing legal policy or finding inspiration for legal development.Footnote 161 The Supreme Court decision in Jones v Kaney in 2011Footnote 162 is a good example of this practice. In this case, the Supreme Court re-examined the immunity in negligence of expert witnesses. Following the Osman v UK litigation, the UK courts had started to challenge any perceived ‘immunities’ in negligence: the case itself being triggered by the allegation that the police had been given immunity from negligence claims arising in the course of its investigations.Footnote 163 The Court does not cite a single European case. In contrast, it refers to Australian, US, Canadian, New Zealand and Irish case law: the ‘usual suspects’ reasserting themselves some 11 years after Osman. Faced with a question of legal policy as to the detrimental effect (or otherwise) of rendering expert witnesses liable in an area of law not regulated by EU law, the Supreme Court found it ‘more than usually helpful to look at developments in other countries’,Footnote 164 by which it meant, of course, the countries of the common law world. Despite, therefore, the supremacy of EU law and the legislative direction to ‘take into account’ European human rights law, the legislative framework permits the UK courts to continue their previous practice of relying upon common law sources as a means of developing core private law principle.Footnote 165
V. CONCLUSION
In this article, I have examined the extent to which the introduction of the European Communities Act 1972 and Human Rights Act 1998 has led to changes to the English law of contract and tort. There has, in reality, been remarkably little change to these areas of private law and while this is due in part to limited intervention at EU level and the form in which legislation has been introduced, this article has identified the practice of the courts (and indeed the legislator) as playing a key part in minimizing the impact of ‘Europeanization’ on the English common law. As a result, when courts decide to use comparative law, their first port of call will still generally be that of other common law jurisdictions. While occasional references to the ‘wider jurisprudence’ of the civil law world may appear in UK judgments,Footnote 166 there remains, as the empirical studies have shown, little evidence in the law of contract and tort of a gradual movement towards acceptance of a European legal culture, as anticipated by a number of commentators and judges.
The approach to date of the English courts has therefore been to interpret legislative intervention restrictively and to minimize any encroachment of European influences. This does depict the common law, however, as a static entity, with its underlying conceptual basis set in stone. This seems at odds with the inherent flexibility found within the common law and, indeed, with the fact that common law jurisdictions now diverge quite considerably in places and it can no longer be assumed that the law stated by the High Court of Australia or the Supreme Court of Canada will mirror that of the UK. As Lord Scarman once commented: ‘[t]he real risk to the common law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by a conservative judicial approach’.Footnote 167 While flexibility must be balanced against the risk of creating uncertainty in the law,Footnote 168 it is important that the courts do not neglect the benefits which may be gained from sources beyond the common law legal family. An overly restrictive approach risks overlooking useful sources for legal development and relying on common law sources for little bar ornamental reasons.Footnote 169 It also ignores the fact that EU and, to a certain extent, ECHR case law is now part of the UK legal system, dealt with in textbooks written by UK academics and generally accessible in English. The factors highlighted as important in the empirical studies do, however, offer a number of reasons why resistance to European influences continues. First, EU and European human rights law often uses unfamiliar (‘foreign’) terminology and, despite the fact that the judgments of the Luxembourg and Strasbourg courts are generally published in English, the form and legal terminology adopted are unfamiliar. Notably, the English courts have struggled to reconcile vague and fact-specific judgments with the common law doctrine of stare decisis and its search for a clear ratio decidendi. More fundamentally, there seems to be some evidence that the UK courts have doubts as to the prestige/reputation to be attributed to these courts. Mak, in her study, noted that Supreme Court judges complained that they found judgments of the CJEU are ‘delphic’, ‘flabby’ and difficult to read.Footnote 170 While she did find more enthusiasm for the ECtHR case law, this was stated to exist despite reservations as to the quality of the judgments.Footnote 171 Bobek's impression was that the English courts have treated their relationship with these courts as a ‘marriage of convenience’; a relationship of necessity entered into as a result of the decisions of politicians rather than one based on love or affection.Footnote 172 This leads to the third issue: cultural similarity. The evidence suggests that courts still regard EU and European human rights law as deriving from a distinct legal culture and one to which the courts have limited familiarity. This continues to be the case despite over 40 years of EU membership and 15 years of the Human Rights Act 1998 being in force.
The question remains whether this is likely to change in future. The courts do not exist in a vacuum and judges are now involved with a number of networks which seek to foster a mutual understanding of common and European law.Footnote 173 UK Supreme Court President Lord Neuberger in 2011 welcomed as long overdue the creation of the European Law Institute (ELI), which seeks to bring together European legal traditions and the widest possible range of jurists—whether they be academics, lawyers, judges and legislators.Footnote 174 Equally, while the current generation of UK judges is unlikely to have studied EU or human rights law at university,Footnote 175 this will change over time and the current generation of student lawyers are taught both these subjects as part of their qualifying law degree. Further, criticisms of vagueness and of failing to give clear guidance may be justified to a certain extent, but do derive in part from a lack of understanding of the form and structure of EU and European human rights law. For example, while the Strasbourg court has been challenged for its inconsistency,Footnote 176 if understood as a living instrument in a system with no doctrine of strong precedent, this is not necessarily a flaw but may be seen as an attribute which permits valuable flexibility over time.
It is to be hoped that greater familiarity and engagement with EU and European human rights law will serve to overcome doubts as to reputation of these sources of law and that this will give rise to a greater openness to and understanding of these sources, assisted by judicial dialogue between the courts of London, Luxembourg and Strasbourg. One obstacle, however, does remain. It seems clear that the current political uncertainties as to the future of the UK within the EU and the possible repeal of the Human Rights Act 1998 have not passed unobserved by the courts and are likely to have discouraged any change from the status quo.Footnote 177 Nevertheless, if we assume that UK membership of the EU is most likely to continue and that some form of human rights legislation will exist, then there is no reason why greater familiarity with European sources should not lead to recognition that they may add value to (rather than detract from) the quality of legal development in private law. It will, however, require the UK legal community to accept that its legal culture is evolving and the common law/European divide is far more blurred than in the past.
On this basis, while common law comparisons have much to offer in terms of insights into distinctive common law concepts,Footnote 178 the value of EU and European human rights law as a source for legal development should not be dismissed out of hand. The current practice of ‘containment’ may provide an impression of safety and security, but path dependency—the appeal of the familiar, leading to an often subconscious preference for working within the existing framework of solutions and practicesFootnote 179—does not always lead to best solutions. While, therefore, practical factors will always be relevant, comparisons with other jurisdictions will be most useful when they are able to improve decision-making and ultimately produce judgments of higher quality, giving the judiciary a perspective beyond their own legal system. If the courts are to benefit fully from the insights provided by comparative law and are not to confine themselves to rhetorical flourishes and citation opportunism, then they must not simply turn to ‘the usual suspects' identified in section III, but consider which legal systems are the most appropriate to the case at hand. At present, there remains a risk that by adopting traditional approaches to comparative law, the English courts are failing to consider relevant sources capable of enriching and enhancing the development of English contract and tort law. Comparative law, as the late Lord Bingham reminded us in Fairchild, should not be a question of a headcount of decisions. It should be a means by which the law can be ‘developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice’.Footnote 180
