Despite some of the ludicrous press headlines we have seen over the last year, British Judges are, in fact, extremely reluctant to comment in areas of political controversy. And, when obliged to make rulings in those areas, any objective reading of their judgements reveals a scrupulous deference to the ultimate law making supremacy of parliament. Any conversation with the Senior Judiciary reinforces that.
All of which makes the recently expressed concerns of the out-going President of the Supreme Court, David Neuberger, about the potential inadequacies of the government's flagship European Union Repeal Bill the more striking, and the more important.
The problem stems from what that Brexiteer mantra "take back control" is to mean in practice. The government sees ending the jurisdiction of the European Court of Justice within the UK as central to that. But equally, and rightly, ministers want to avoid a legal "cliff edge" on our leaving, given how much of our domestic law now derives from EU law, over which the ECJ is currently the arbiter. The Bill seeks to solve this by transposing all existing EU law (the "aquis communautaire") into British law at the date of exit. We therefore have complete equivalence at the date we leave (very important for business) but can then remove the bits we don't like in future. So far, so good.
But two key issues remain unclear. One is the practical issue for our Courts identified by Neuberger. In simple terms it is this: our law is the same as EU law at the date we leave. But law is not a static thing; it evolves and develops over time. There are good reasons why we are likely to want to keep our laws in areas like product standards, financial regulation and data protection equivalent to those of the EU in future, so that we can trade our products into the 27 and continue to participate in key areas like justice and security cooperation. But how do we do that effectively if we cut ourselves off entirely from the ECJ, which oversees that law?
“I will be blunt: as it stands, part of the Great Repeal Bill is a cop-out!”The Bill dumps this problem on the Judges. It tells them, in effect, that they don't have to have regard to developments in EU law once we leave but "may if [they] consider it appropriate to do so." Neuberger is rightly concerned that it is unclear how Judges should approach exercising that discretion, what the overall parameters of it are, what factors they should take into account in exercising it and what weight to give them. He says that is what all judges "would hope and expect parliament to spell out... and to spell it out in statute.” He is not wrong. And I will be more blunt: as it stands, this part of the Bill is a cop-out!
The other issue is more obviously political but again has a legal root and is connected to the first. What is going to be the dispute resolution or arbitration mechanism for our new relationship with the EU27? They are standard practice in international agreements: every free trade deal has one. And we are going to need one both for transitional arrangements (I'm glad the penny has finally dropped on that) and on our long term future arrangements. The Justice Committee's report earlier this year on legal implications of Brexit pointed out the need for certainty and continuity in contractual and regulatory matters. That includes agreed enforcement mechanisms.
At the moment, we risk a standoff between the prime minister's apparent red line on ousting ECJ jurisdiction and the EU’s insistence that only the ECJ can be the final authority on EU law. Personally, I am convinced by the evidence to our select committee that some ceding of influence to the ECJ would be a price worth paying for continued access to European criminal justice agencies and mechanisms, upon which the prime minister ironically sets great store, such as the European Arrest Warrant, Europol, Eurojust and so on, as well as business necessities like mutual enforcement of contracts and court judgements.
A very viable alternative in some areas is using the European Free Trade Association Court, which parallels EU jurisprudence but is institutionally independent, regarded as less meddlesome in states’ internal affairs, and, as its Swiss President points out, whose non-EU members retain "sovereignty in foreign trade.” It gives both sides a compromise without loss of face and saves us reinventing the wheel with a plethora of one-off tribunals.
Getting both those issues right is fundamental to getting the pragmatic, business and jobs friendly Brexit all sensible people want to see. The government will do itself a favour if it listens more to the Judges and less to certain newspaper editors and media polemicists.
