PATRICK BIRKINSHAW 1717 The SC decided these points under the common law because, wrongfully it subsequently transpired, the ECHR and HRA were presumed not to apply on the facts of the case29. A dramatic development occurred in Kennedy v Charity Commissioners [2014] UKSC 20. In this case the Supreme Court decided not to follow Strasbourg jurisprudence on Art 10 ECHR so that the majority ruled Art 10 did not give a right of access to documents. But a similar result was achieved by the common law of open justice and transparency and judicial review of a refusal to allow access to publicly held information. The common law said Lord Toulson had not become an ossuary and it could do what the Convention could do. What is notable is not only a political movement to place a modern UK Bill of Rights on the statute book, especially from the Conservative Party and to replace the "European" HRA. There have been voices of judicial concern with Strasbourg's expanding influence. This is an ongoing debate. What is clear is that our domestic common law of human rights would not be where it is today without the influence of European law from Strasbourg. Perhaps the most striking recent constitutional development in the common law has been the judicial dicta from judgments of the UK Supreme Court and the Court of Appeal stating that if a provision of a Parliamentary statute undermines human rights and the rule of law, the courts would not exclude the possibility of declaring such provisions in primary legislation unlawful. The circumstances would have to be in extremis. Even Parliamentary sovereignty, it seems, has limitations30. ii. the eec/ec/eu The UK was not prepared for the revolution that was to take place in domestic law when we acceded to the Treaty of Rome in 197331. It was to take many years for the full implications of Costa v Enel32 and Van Gen den Loos33 to be fully perceived within domestic jurisprudence in the Factortame No 2 judgment and the effects of sovereignty and direct effect to be fully appreciated34. The House of Lords disapplied a UK statute which breached EU law. As with the ECHR, and despite the different ways in which both legal regimes were implemented within UK law, a domestic judicial reluctance to accept the "blank cheque" approach to sovereignty of EU law has been in evidence both in judicial decisions and in extra judicial commentaries by influential judges. National constitutional space cannot be presumed to have been absorbed by EU constitutional primacy through a process of constitutional convergence35. 29. HM Treasury v Ahmed [2010] UKSC 2. 30. See Moohan [2014] UKSC 67 para 35 Lord Hodge; Public Law Project [2016] UKSC 39 para 20 Lord Neuberger for the court; Shindler [2016] EWCA Civ 469 paras 47-50. See Laws LJ in Thoburn [2002] 4 All ER 156 at 183-188 on common law limitations on Parliament's sovereignty 31. The necessary legislation to comply with our international legal obligations was the European Communities Act 1972. See s 18 European Union Act 2011 and the dualistic nature of UK law and the EU. 32. Case 6/64 Costa v Enel [964] ECR 545. 33. Case 26/62 Van Gen den Loos [1963] ECR 1. 34. Case C-213/89 R v Secretary of State for Transport ex p Factortame Ltd (No 2) [1991] 1 All ER 70. 35. The most important and recent rulings are R (HS2) v Secretary of State for Transport [2014] UKSC 3 approving Thoburn v Sunderland CC [2002] 4 All ER 156 and Pham v Secretary of State for the Home Department [2015] UKSC 19. See Lord Mance's criticism of Advocate General Cruz Villalón's Opinion (in the OMT Case C-62/14 especially § 53 and 60) to that effect in Pham § 78-79.