If there is one legal issue that’s likely to make headlines during the election campaign, it is human rights. So there was some surprise when the lord chief justice touched on such a controversial topic in a speech released just a few days before the election was called – even though Lord Judge maintained that his remarks were confined to ‘non-political matters’.

The Daily Mail was delighted, understanding the speech as a call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’. A comment in the Guardian, which tends to favour the opposite point of view, argued that the election should remain a judge-free zone.

Judges may be good at expressing themselves in written judgments, but they can sometimes be less than clear when speaking out of court. One sentence in particular made it appear that the lord chief justice was calling for a change in the law.

‘What I respectfully suggest,’ he said, ‘is that statute ensures that the final word does not rest with Strasbourg but with our Supreme Court.’

But Judge was not urging the next parliament to pass a law giving the UK’s judiciary supremacy over rulings by the European Court of Human Rights. He was pointing out, with unnecessary self-deprecation, that our own law already does just that.

Under section 2(1) of the Human Rights Act 1998, the courts must ‘take into account’ any relevant judgment from the European Court of Human Rights. But that phrase does not make decisions of the Strasbourg court binding on our own courts. As the Supreme Court explained last December in Horncastle, there will be rare occasions when Britain’s most senior judges have ‘concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process’.

In such circumstances, said Lord Phillips, president of the Supreme Court, ‘it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.’

Judge was not merely aware of these remarks – he sat as one of the law lords who heard Horncastle last July and assented to the ruling, echoing it in his lecture when he said it would ‘not always be appropriate’ to follow particular Strasbourg decisions. It was because they are not binding on our own courts that he argued that they should not be cited once the Supreme Court had ruled on an issue.

Why, though, raise all this now? It is to contrast Strasbourg decisions with those of the other European court, the EU Court of Justice at Luxembourg – which are indeed binding on our own judges. Everyone knows that, of course, but what’s new is that the EU is about to expand its jurisdiction to include criminal matters.

As the lord chief justice explained, the framework decision on criminal convictions will be implemented on 15 August: ‘It will require domestic courts to take account of previous convictions, whenever returned in the community, in the same way as they take account of domestic previous convictions.’

Judge did not regard that as ‘shattering in itself’. Indeed it is not – unless you take the view that some EU countries are not as assiduous as we are at ensuring fair trials; others, of course, may be more so.

But that is only the start. As the lord chief justice said, the EU has recently signed up to a ‘roadmap’ of five areas of criminal procedure that must be addressed to protect human rights. ‘I thought that was the job of the [human rights] convention,’ Judge observed tartly.

Britain will have to decide whether to opt into the criminal justice aspects of the Lisbon Treaty. Judge did not say whether he thought that would be a good thing. But he pointed out that litigants dissatisfied by a binding EU criminal justice provision would have to complain to the Strasbourg court since ‘distressingly, they would not be able to complain in our own courts’. Put that way, opting in does not sound a very attractive outcome.

And it becomes even less attractive when you factor in the need for judicial training. The quaintly named Judicial Studies Board, whose annual lecture Judge was delivering last month, is the body responsible for training the judges of England and Wales. It has been run by those judges throughout its existence. Though the lord chief justice did not spell this out, it was clear he feared that this independence from government would be jeopardised if our judges were required to attend so-called European training schemes, perhaps in other EU countries, alongside the police, prosecutors and border staff.

Judge also warned us of another threat to judicial independence. ‘I think the time may come,’ he said a trifle mysteriously, ‘when it will be proposed that there should be a more formal mechanism by which the judiciaries of Scotland and Northern Ireland as well as those of England and Wales… should have formal communication with the legislature and the executive for formal discussion of matters of common interest’.

In Judge’s view, that would draw the judiciary too closely into policymaking decisions. And, as he rightly said, a politicised judiciary is anathema.

Strasbourg is not the issue. The real danger is closer to home.