Last night Lady Hale gave the 2011 Barnard’s Inn Reading, entitled ‘Beanstalk or living instrument,  how tall can the ECHR grow?’ During the lecture she explored the theme of legal evolution and the manner in which Convention rights have been reinterpreted in order to reflect changing social mores. In particular she examined four areas in which the changing interpretation of Convention rights is more problematic:

(a) the interpretation of the ‘autonomous concepts’ in the Convention; (b) the implication of further rights into those expressed; (c) the development of positive obligations; and (d) the narrowing of the margin of appreciation permitted to member states’

Examining these areas she stated that the limits of the ‘living tree’ of the ECHR:

‘Are not set by the literal meaning of the words used. They are not set by the intentions of the drafters, whether actual or presumed…But there must be some limits. I have sketched out some particular areas of difficulty for a national court which is trying loyally to keep pace with the evolution and on occasions to make a reasonable prediction of where Strasbourg will go next. In the end, the standard most often appealed to in the court’s jurisprudence is the common European understanding’

She concluded that:

‘The key element, it seems to me, is that the development should be a predictable one…It should reflect the common European understanding, however that may be deduced. And it should seek to strike a fair balance, between the universal values of freedom and equality embodied in the Convention, and the particular choices made by the democratically elected Parliaments of the member states.

What will be interesting is the manner in which Lady Hale’s speech will be interpreted. Any speech by a senior judge on such a controversial topic is bound to be pounced upon by commentators and politicians. The Telegraph has already suggested that David Cameron may use the speech as ammunition in the ongoing debate over the Strasbourg court’s decision in Hirst v UK (App No. 74025/01) on prisoners’ voting rights. Lady Hale is not the first senior judge to voice concerns over the Strasbourg Court’s decision making. Lord Hoffman was far more critical in his 2009 lecture to the Judicial Studies Board. Lady Hale’s analysis is less controversial that Hoffman’s, and she preceded her conclusion by asserting that she was a strong supporter of the Convention and the work of the Court – but this all important caveat may well be lost in translation.