It risks tying itself in legal knots—and the PM’s insistence on ousting ECJ juristiction isn’t helpingby Bob Neill / August 17, 2017 / Leave a comment
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…