John Jackson (London, Mishcon de Reya & Unlock Democracy): Fraser Nelson's suggestion (commented on in OK below) that Gordon Brown might, by order, seek to require the English courts to give English common law precedence over Strasbourg law is fanciful in the extreme.
Firstly, even with our nebulous constitution, there is no way in which the executive can instruct our courts on what law they should apply-or how they should apply it. Nor, fortunately and however much a former Home Secretary Charles Clarke may regret it, are our judges open to cosy little chats at the invitation of government so that they can be well informed about what government is trying to do.
If an attempt was made to push legislation through Parliament to achieve such an end-and such an attempt would surely be political suicide by any government- it would provoke a major constitutional crisis. It would also remind us that, since the Constitutional Reform Act of 2005, the courts are required to interpret legislation so that it is consistent with the rule of law-if that is possible. Does the rule of law permit a legislature to determine a matter of this kind? The answer to that might be "yes" if it flowed from the terms of a precise and democratically created constitution.
