July 22, 2016

Brexit and Judicial Power

Policy Exchange’s Judicial Power Project new paper by Richard Ekins commenting on ‘Brexit and Judicial Power’ coincides with a panel event on the same theme, chaired by Lord Judge, former Lord Chief Justice of England and Wales. Panellists included: Dr Gunnar Beck, barrister at 1 Essex Court (Chambers of the Rt Hon Sir Tony Baldry), former advisor to the European Scrutiny Commission of the House of Commons; Professor Richard Ekins, University of Oxford and Director of the Judicial Power Project; Professor Carol Harlow QC (Hon), FBA, London School of Economics (Emeritus); and Professor Simon Lee, Professor of Law and Director of Citizenship  & Governance Research at the Open University, Fellow of St Edmund’s College, Cambridge and Emeritus Professor of Jurisprudence, Queen’s University Belfast.

Both the paper and the panel considered what Brexit means for judicial power in the UK constitution. Themes addressed included the role of Parliament and the courts in triggering Article 50 of the Lisbon treaty particuarly in light of current litigation proceedings; the record of the Court of Justice of the European Union (CJEU); and the implications of Brexit for how British judges are likely to act in the future. Lord Judge himself described the referendum result as creating an “unparalleled constitutional situation”.

In discussion, Dr Gunnar Beck recognised that the approach of the European Court of Justice (CJEU) to treaty interpretation was a contributing factor to Brexit. He emphasised that the CJEU has not been an impartial arbiter between the interests of member states and the EU, but has adopted an approach that favours increasing EU integration.

Professor Richard Ekins expanded on comments in his paper on ‘Brexit and Judicial Power’, arguing that judicial overreach has been a partial cause of Brexit, particularly in light of the approach of the CJEU. He further called for courts to reject current litigation calling for the involvement of parliament in the process of triggering Artice 50 and challenging the proposed exercise of the prerogative. While these cases may be arguable, Professor Ekins suggested the courts should decline to interfere with the exercise of the prerogative or encroach on the political accountability processes that will be exercised by Parliament.

He recognised that membership of the EU and the incorporation of EU law has also influenced how British judges and lawyers think. Withdrawal from the EU will not immediately change this reality, and Professor Ekins pointed to the need to pay attention to the way judges approach the transition, cautioning that whilst Brexit represents a welcome reassertion of the sovereignty of Parliament it might also lead to unintended consequences when it comes to judicial power in that it may encourage domestic judges to overreach.

Professor Carol Harlow agreed that operation of the CJEU, with its powerful policy making agnda and limited accountability, has contributed to Brexit by infringing upon national sovereignty. She affirmed the place of the political constitution in the UK and expressed the hope that the courts will exercise restraint and not arrogate to themselves the power of defining the relationship with government.

Rounding out the panel, Professor Simon Lee noted that we are in a “high constitutional moment”. He addressed the rhetoric used around the referendum and its result and reflected on the importance of attending to the language in the context of dialogue and debate.

Introduction: Lord Judge, formerly Lord Chief Justice of England and Wales 

Good afternoon everybody. I’m going to put in a disclaimer, nothing I say should be taken as an indication of my aspirations, hopes or views on this particular subject but it is a very important subject, well worth I think, having four distinguished speakers come to tell us about.

The answer to the question about Brexit and judicial powers needs to be addressed, we are in the middle on an unparalleled constitutional situation and you could call it a desert. You could call it a desert because none of us knows what the answer is but I think it arises from the fact that with our half-written constitution Brexit represents, and I hope nobody thinks I’m being over-dramatic because I’ve thought about this and if I am being over-dramatic, it’s over-dramatic and considered, I think it’s probably the most important event involving the constitution and the exercise of the prerogative since Neville Chamberlain told the world on 3rd September 1939 that we are at war with Germany. Worth pausing for a moment, no parliamentary consent to that, it’s at least possible, I think probable, that if he’d gone to parliament he would not have had a vote. Well, we’ve changed all that our prerogative situation’s changed in relation to wars, treaties and so on and that’s how this arises. So when Article 50 (I hope you don’t mind if we do this by shorthand or we’ll be here for hours) when Article 50 is invoked, is that a purely prerogative decision, a partial prerogative decision? Does it, if the end result is the repeal of the European Communities Act, if that is the inevitable result, involve parliament? Should judges be involved at all? I know there’s litigation going on so the judges will have to be involved. It is, of course, open to them to say, I’m not advocating it, but we’ll consider it and decide that we have no power to deal with it, but I suspect that won’t be the answer. But is it for parliament or is it for the courts to decide this? There’s a political question, there’s a constitutional question and depending on which question you’re asking, is it political or is it constitutional, you may end up with a different result. There has to be political reality in order for the constitution to work.

So there are some very significant issues here, we’ve only got an hour, I hope you won’t mind if we transgress over the hour. If you have an urgent appointment at 5.30, please feel free to go, even if we haven’t finished. But we have four distinguished speakers, they’re going to speak for about 10 minutes each, if you have questions for any individual speaker could you save it up for the end and ask the questions at the end and then we can have a discussion in which all of you can join in if you wish, but it won’t be a very long discussion.

First I’ll ask Dr Beck who’s nearest the lectern, he’s a member of the Bar at Essex Court, he’s a lawyer, a legal theorist; if I give you all the distinctions of all our speakers, that’s the whole hour taken up, so do my panellists mind if I don’t do that? Dr Beck. Just before, I should say I have no idea what any of our speakers are going to say!


Dr G G H Beck, Barrister, 1 Essex Court (Chambers of The Rt Hon Sir Tony Baldry), former advisor to the European Scrutiny Committee of the House of Commons

Well, I’ve been told to stand up, I can do no other, that I suppose is how many people in this country must have felt about the European Union. Now the Court of Justice, the principle subject of my talk today, has been portrayed and perceived by many as a motor of integration and of where the EU was heading but many in Britain don’t wish to go. EU laws don’t mean what they say but what the Court says they mean, this has been the general perception. This perception, a contributing factor to the Brexit decision, is correct and I wish to explain that this is not accidental but rooted in the ECJ’s (I can still call it the ECJ, no point in adjusting before it becomes irrelevant here) the ECJ’s distinctive approach to treaty interpretation. I shall then address some of the issues, some of the areas where the court may still be relevant to the exit process.

Now the general rules of treaty interpretation are set out in Article 31 and 32 of the Vienna Convention on the Laws of Treaties. Article 31 states that treaties must be interpreted in good faith, in accordance with the ordinary of the meaning of the terms or text of the treaty, in their context and in the light of the treaty’s object and purpose. Article 32 then contains a supplementary interpretive rule which allows the court to have regard to the preparatory work of the treaty and the historical circumstances of its conclusion as secondary aids to interpretation.

Now the Court of Justice itself has summarised its own interpretive approach as follows. Quote: “In interpreting a provision of union law it’s necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part.”

<Interruption as others join meeting>

In theory the Court of Justice is bound by the Vienna Convention and its summary of its own approach superficially echoes Article 31 of the Vienna Convention. In practice, however, the Court of Justice departs both from the letter and the spirit of the Vienna Convention. Based on detailed case law analysis in my study of the Court of Justice, I’d like to summarise the ECJ’s interpretive approach to judicial decision-making as follows:

•First, although the Court frequently refers to the wording of a treaty or legislation it interprets, the ECJ compared to many other courts, is relatively more willing to give priority to purposive criteria, i.e. the objects, purposes of a provision over linguistic criteria, i.e. the text.

•Secondly, the Court rarely, if ever, uses historical arguments, so it doesn’t do what the supplementary rule of Article Rule 32 of the Vienna Convention asks it to do, namely to have regular regard to the preparatory works; the Court of Justice does so when it suits its purpose or the historical circumstances leading to the conclusion of the treaty.

•Third, the Court often then implicitly takes account of so-called meta theological criteria, i.e. the general integrationist objectives of the EU and not merely as it suggests in its own description of its approach, the explicit, quote, ‘objects’ of the rules of which a legal provision forms part.

•Fourth, as soon as the Court decides with implicit reference to ever-closer union or the principles that favour an integrationist solution, that decision effectively becomes a precedent. In referring back to its own case law the Court must implicitly also rely on the cumulative weight of previous integrationist decisions. Precedents thus solidify and reinforce the Court’s communotaire leaning.

•Fifth, the Court of Justice operates in an extremely permissive political environment, in domestic legal systems. It’s open to the legislator to override court judgements by passing appropriate legislation, judgements by the Court of Justice by contrast, can be reversed only by the Court itself or by unanimous treaty amendment by the member states, so it’s as difficult for the member states, for the political actors, to override a Court of Justice judgement as it is to effect a treaty amendment. The letter is broadly regarded as near impossible, as impossible, to change the undemocratic judgement of the Court of Justice.

•Sixth, the Court of Justice interprets the treaties as living, not historical instruments.

•Seventh, in contrast with several other courts applying the Vienna Convention the Court of Justice does not accept a hierarchy amongst literal purposive and other interpretive criteria.

•And finally the Court’s variable approach (I say variable approach because sometimes it prefers literal criteria, sometimes purposive, sometimes contextual, i.e. a reading of a provision in its broader legislative context) this variable approach combined with its constant regard to the integrationist objectives of the treaty, give the Court’s decision-making its distinctive pro-union or communotaire tendency, i.e. a pre-disposition to resolve legal uncertainty in favour of further integration or the union’s interests.

Now the Court’s communotaire Predisposition of course varies with the importance of the cases. It’s often irrelevant and it usually is in most of the run-of-the-mill cases which concern the application of more or less clear, detailed and technical provisions, agriculture, sometimes the environment, detailed trade provisions. However the Court’s most pro-union default position becomes crucial and often the decisive factor in cases involving major issues of principle, such as constitutional issues or the division of competencies between the EU and its member states. Obvious recent examples of this tendency to twist the wording of treaty in favour of the union’s interests are a) the decisions of the Court on anything that relates to the Eurozone crisis and secondly of greater interest in this country, the case law of the Court of Justice on the extension of a right to contributory and non-contributory benefits of EU migrant workers. If one looks at the treaty there’s simply no basis for the conclusion the Court reached in adding to the substance of the rights of migrant citizens.

Now to sum up what I’ve said, the Court of Justice is and never has been, an impartial arbiter when it comes to the interests or the member states and the EU. It may at times defer to member states, yet its interpretive approach is designed to favour integration.

So how may the pro-union bias of the Court of Justice affect the withdrawal process during the negotiations and beyond? There are several distinct issues which I’d like to address very briefly.

•First, what’s the possible judicial role in Brexit itself? As EU treaty articles go and that may be a damning verdict, Article 50 of the treaty on the European Union is actually comparatively clear and there’s little scope for the Court of Justice to twist its wording to prevent the UK from triggering it at the time of the UK’s own choosing. The crucial question regarding Article 50 however, is whether the notification to withdraw once given, can be reversed. Article 50 is silent on this point and so the most natural meaning might be that it cannot. However, this is a highly political question. I’m sure the Court of Justice will not block a legal reversal of the UK’s withdrawal if all or most member states agree on the reversal. Now I’ve recently been to a conference in Italy, there most of the delegates still thought the UK will never withdraw, it appears from here that this might all be a rather hypothetical scenario. Now as for the Court of Justice’s interpretation of the treaties while the UK is still a member of the EU, the UK remains bound by that interpretation as it has been so far, until the point of withdrawal.

•Second point, domestic legislation based on EU law retained after Brexit, this is a more intractable problem. When the UK finally leaves the EU the interpretation of EU based domestic legislation is transferred to the UK courts, which have internalised principles and aspects of the Court of Justice’s approach and may continue to have regard to ECJ case law as persuasive judgements. It is up to parliament to decide if this is a problem. However, the effects on the judiciary of the EU way should become less important with time as UK legislation will gradually build on and to partly supersede the reside of EU legislation.

•Third, what is the role of the Court of Justice in dispute settlements under any EU/UK trade deal? Disputes arising under any trade agreement between the EU and the UK will require a tribunal. It is obvious that this tribunal should not be the Court of Justice. However, problems may arise if the UK wishes to retain access to the single market for goods and services, which is based on the principles of mutual recognition and passporting for financial services. In this case a separate court may be set up as it has been in relation to the EEA, the European Economic Area, where disputes arising in the non-EU members of that area are decided by their national courts or the so-called FDR Court, but the problem is that the FDR Court is to all intents and purposes, required to follow the relevant case law of the Court of Justice. So in this case a separate court has been set up but if the EEA model is adopted that court will be bound to follow the case law of the Court of Justice on single market legislation. If a different model, if it is a model at all, along Swiss lines is adopted, the arrangements might be more flexible. In the Swiss case there is no court that could adjudicate disputes arising from the number of agreements that exist between Switzerland and the EU but the EU will undoubtedly, even in such a scenario, insist on single market legislation being followed, as interpreted by the Court of Justice. This will, I think, be a major obstacle in securing any trade deal with the EU which would give the UK a single market issue.

•My fourth point concerns the ECHR, I propose to say nothing on it because unless Britain decides to withdraw from the ECHR her obligations under that convention are unaffected by the withdrawal from the European Union.

Thank you.


Lord Judge

Next Professor Richard Ekins, Director of the Policy Exchange’s Judicial Power Project. There is a paper at the back which you’re all welcome to collect, that can mean that he won’t be speaking for as long as the paper but if I tell you that it’s all the judiciary’s fault that Brexit has happened at all, on the first page, you may find it interesting. Richard.

Professor Richard Ekins, University of Oxford and Director of the Judicial Power Project

Thank you. Well, I hope it is interesting, it’s certainly not my proposal that Brexit can be attributed entirely to the courts, it’s a complex situation.

Let me thank Lord Judge for very kindly chairing today’s proceedings and thank the panellists for joining me and all of you for taking time out of a lovely, sunny day to come and talk about the law and the constitution. I should thank Julie and Amy, Charlotte and the other staff here at Policy Exchange for making this all possible today. But I certainly won’t be taking you through the entire paper and some of you will have found the paper on your seat and for others it’s available at the back if you want to see it and online now as well, I believe. But I want to just to mention a few points that arise from it, so I want to say a little bit about the legal challenges that are now underway for before our courts and then talk about, for the remainder of my time, about the future of judicial power after Brexit, what Brexit means for the future of judicial power in our constitution.

Like many other academic lawyers I think the current challenges that have been moved before the courts are misconceived and it’s a view shared, I should add, amongst academic lawyers who certainly don’t all adopt my position on judicial power in general. And the reason I think it’s misconceived and should fail before the court is that the European Communities Act 1972 takes for granted Britain’s membership of the treaties; it takes for granted also, relies upon in fact, the continuing exercise of the prerogative, and the prerogative can be used to initiate a process, a treaty process, a process under a treaty, in the way that Article 50 sets out. Now this doesn’t mean plainly that parliament will not be involved in the process of Brexit at some point, at a bare minimum it will be required to make changes to the European Communities Act itself if Brexit is to take place or to be effected coherently but there’s nothing legally or constitutionally improper about the government initiating the Article 50 process itself. By all means there should be public debate, there’s a fair bit of that going on, but debate in the Commons at a minimum, about the government’s plans, about its timing in relation to Article 50. But there is in this situation, this unusual situation, very little prospect of the government surprising parliament. Parliament enacted the European Referendum Act in 2015, inviting the British people to decide the question of membership of the European Union and it’s unremarkable in one sense that a government that enjoys the ongoing confidence of the Commons would act using its existing legal powers on the basis of the outcome of that vote. Now of course anyone is free in our party to initiate legal proceedings and there is an arguable claim here. I think it’s wrong but it’s arguable. But it’s a claim that puts the courts in a difficult position, a position where they could be perceived, depending on how it proceeds, perceived to be lending aid to attempts at delay, attempts to otherwise frustrate Brexit. That’s plainly not a good thing for the reputation of the courts, not a good thing for social trust and our constitutional order more generally. So I hope they reject the challenges clearly and promptly and that they leave to the Houses of Parliament the task of holding the government to account for its proposed actions.

Let me turn to what this all means, what Brexit will mean, for the future of judicial power and that does require a little consideration for EU membership has meant up ‘til now for judicial power. I don’t propose to address the record of the Court of Justice, save to say that our courts have plainly not always been happy with the way the Court of Justice proceeds. Indeed in two remarkable recent cases over the last few years the Supreme Court, our Supreme Court, has tried to carve out grounds on which the courts might in extremes resist the incorporation, the adoption, of the Court of Justice’s jurisprudence. Now I wasn’t sure, as was the case with many other lawyers and I think the Supreme Court itself, that this attempt was likely to succeed and the prospect of Brexit largely makes it mute, but it does confirm attention, it confirms the concerns our courts have long had about the Court of Justice’s mode of operation. But that’s not the whole story because membership of the European Union has had a significant impact on the way our judges, British judges, think about their role, their constitutional role. They have become accustomed to the idea that Acts of Parliament can be set aside when in conflict with European law and to be clear that’s not a power grab on the part of domestic judges, that’s a shared consequence of Parliament’s choices, Parliament’s ongoing choices. I think Factortame was rightly decided. But it’s an arrangement that’s changed over time especially, changed the way British judges have thought about their position and it spurred the expansion of judicial power beyond the scope of EU law. And I should say it’s not just an idiosyncratic view of mine to this effect, Lord Neuberger, President of the Supreme Court, has said exactly the same, he tried to explain rather than justify, the expansion of judicial power which he sees. He’s argued that the practice of overruling primary legislation by reference to EU law has supported a new judicial mind set. You can find similar remarks in Lady Hale’s argument that the rule of law is on the rise and parliamentary sovereignty is in the decline, not very recent remarks I should add, but if you go back a year or two and for many years before that, one finds this argument. And the principal ground on which she relies for this argument is the fact of EU membership and the highpoint of this whole line of discussion was an attempt in a very significant case, Jackson and the Attorney General. It’s an attempt by several members of the House of Lords, the Judicial Committee of the House of Lords, to assert that parliament sovereignty is no longer the law, that it’s been overtaken by a succession of events, including first and foremost, the fact of membership of the European Union. Now that was never a plausible argument, I think. Lord Bingham trenchantly criticised it judicially but it continued to have an afterglow, if you like, in the jurisprudence, in the case law, ex-judicial commentary. And Brexit should bring that to an end. Whether it does, of course, remains to be seen.

What does this mean more generally for judicial power and our constitution? Many of the arguments that have been made against the Court of Justice’s role and EU membership also hold in relation to the European Court of Human Rights, the Strasbourg Court and ECHR membership. An over-mighty court, not strictly bound by legal materials, often frustrating national policy, maybe especially in relation to borders and migration. Much of Britain’s migration law is heavily framed by surprising readings of Article 8 of the ECHR. There are very important differences, of course, it is easier, much easier maybe, for the political authorities to resist a decision of the Strasbourg Court than of the Court of Justice. But there’s a similarity of mode of argument here which might suggest if one takes Brexit seriously, one considers withdrawal from the ECHR. Having said that it might be highly unwise to undertake that course of action at present and it might be political impossible too. Strains on the United Kingdom that are arising and will continue to persist, one expects, from Brexit are intense and there’s not going to be a lot of political capital to go round, spare political capital, one thinks. It might be more promising for British authorities to resist problematic European Court of Human Rights rulings more often than they do and to do so on the grounds, in fact, that the Supreme Court contemplated it in relation to the Court of Justice, namely rulings that compromise a fundamental part of the British Constitution or especially rulings that are ultra vires the convention itself, which is especially important in view of the Strasbourg Court’s treatment of the convention as a living instrument. Now this might not be first and foremost a matter for domestic courts, it might be a matter for parliament, for the government to rely upon.

Assuming no withdrawal from the ECHR which I think is what one should assume, what will Brexit mean for how judges proceed? It could encourage them to abandon the mind-set that Lord Neuberger diagnosed and to become more restrained in their dealings with statutory interpretation in general, the review of executive action, more respect for parliament’s decisions, more respect for existing executive prerogatives. But it’s possible that exactly the opposite will happen. Many judges and lawyers will think that parliament is now dangerously unbound, that the executive is more and more dominant especially if the Opposition remains in a difficult state and so it falls then, one might think, to the courts to fill the vacuum. And that’s an important consideration because Lord Neuberger, diagnosing the rise of judicial power, noted another factor in that rise beyond EU membership, it was the judicial perception the executive is ever-more dominant, parliamentary power is on the wane, the courts need to fill the vacuum. I don’t think that’s a good justification for the expansion of judicial power, I’m not sure Lord Neuberger does either. It is an explanation, however, and it means that while Brexit may bring to an end a direct constituent part of the problem of excess judicial power, the direct role of the Court of Justice, it may have unintended side effects that exacerbate the problem in other ways. So those side effects will require continuing attention and action.


Lord Judge

I’ll invite Professor Carol Harlow to speak next. As she’s making her way to the lectern, the timetable that I have heard is that the Article 50 proceedings will be heard in October before a court presided over by the Lord Chief Justice. Whether it will then… presumably it will then, whatever the outcome, go to the Supreme Court, I rather anticipate it might go by way of a leapfrog appeal straight to the Supreme Court and if it does that the Supreme Court ought to be able to deal with it before the end of this year. Quite where that will be in the context of Article 50 and its invocation remains to be seen. Angela Merkel seems to be talking on one side and Monsieur Hollonde, I say today, is talking on another.

Professor Harlow. 

Professor Carol Harlow, QC (Hon.), FBA, London School of Economics (Emeritus)

Richard when he asked me to talk at this meeting, offered me the impossible brief of answering three rather difficult questions in eight minutes, which I am unable to do!

So I can dispose of his first question which concerns the judicial role in Brexit simply by saying that I’m first a firm believer in the political constitution and in consequence I’m content to stand with the blog of Sir Stephen Laws, who I feel as a former Head of the Office of Parliamentary Counsel probably knows a great deal more than I do about the relationship between government and parliament, so he concludes with Professor Mark Elliott that it would be legal for the government to rely solely on the prerogative powers to trigger Article 50 but political naïve to do so. And I also echo Stephen Laws in saying I hope and expect that the courts will exercise restraint and not arrogate to themselves the task of defining and so limiting the nature of parliament’s proper relationship with government. I would remind them, therefore, of the Rees-Mogg decision which followed the decision to sign to the Maastricht Treaty.

The second question covers, I think, much that was said by Dr Beck because it was has the Court of Justice contributed to Brexit, to which I would simply answer yes, inevitably so, because the Court of Justice has the last word on the interpretation of EU law and its mission, as now defined in Article 19.1 of the Treaty of the European Union, is to ensure that in the interpretation and application of the treaties the law is observed. And writing about that many years ago Martin Shapiro said that the member states put in place, I think he said a cat, and when they let the cat out of the bag it turned on them and they were surprised. So in domestic law our courts are bound by Section 3 of the European Communities Act hereafter the 1972 Act, and that provides for references to the Court of Justice where there’s a question of interpretation about the treaties or any EU instrument, otherwise the court can decision the case in accordance with principles laid down by the Court of Justice. And I can’t imagine as Richard, I think, said, that the 1972 Act will be repealed until a very late state in Brexit negotiations.

Of course, as Dr Beck has said, there are very many principles which impinge on national law; to mention only three very significant ones. 1) the so-called primacy rule that EU law takes precedence over all types of national law, including the constitution, the national constitution, and that is a judge-made law; the principle that national legislation must be dis-applied which, of course, the UK to wake up after the Factortame decision; and the Marleasing principle that national legislations be interpreted so as to be compatible with EU law. Clearly those are things which helped to lead to the idea that there was an impingement on national sovereignty and when we add to that that EU law generally is enforceable first through the power to bring infringement proceedings, later reinforced by the possibility of heavy fines and secondly through the principle of member state liability which became the issue in the Factortame Case, it is clear that there must be some effect and impact.

Generally speaking it is agreed that the effect of the European Union has been to strengthen executive power throughout member states and empower the judiciary and the Court of Justice has undoubtedly played a more significant part than we in the United Kingdom might expect and a more active role in European integration than we’re accustomed to see in our own courts. It is, as Dr Beck told us, and which I’d like to underline, an unusually powerful court. American scholars often compare its policymaking capacity only to that of the US Supreme Court. It’s a court, as he said, with low accountability, there’s no appeal from it and again as he said, it’s very difficult indeed to erase its jurisprudence through political action and attempts to fight back against the Court of Justice political have usually failed. And here I would only mention the attempted strike back by the British Government after the Factortame decision when it proved impossible to get consensus for reform in the Council. In contrast, parliaments have been squeezed by European Union, not only our own parliament but in other states such as Denmark, the Netherlands and the United Kingdom with strong traditions of parliamentary democracy, and although the Lisbon Treaty tried to find a place for national parliaments in EU policymaking (yellow and orange cards if I have that right, I’m not a football player) they have not, so far, been very effective.

So onto the third question in two parts, what might Brexit mean for judicial power in the UK and I can only sketch some things that we might like to think about. Assuming that the 1972 Act will remain in force, then Section 2 as well as Section 3 of the Act will remain in force and that will mean that directly effective EU regulations will continue to take effect in the UK without further enactment; that other instruments (very loose terminology there) will not take effect directly but like directives they can be implemented by the government using Order and Council and I’ll come back to that point. This would include, of course, Court of Justice rulings. So there’s certainly scope for an impact during this period on UK law. And in addition to the cases Dr Beck mentioned, I mention the significant case of Digital Rights Ireland, which shows the sort of way this might operate in which the Court of Justice ruled that The Data Retention Directive, an EU directive, was invalid because it contravened the Charter of Fundamental Rights. As we know our government, which expressed concern about the validity of the Regulation and Investigatory Powers Act 2000, introduced a Bill called DRIPA and became the subsequent Data Retention & Investigatory Powers Act in 2014, and that added to the list of situations where public authorities could obtain and use communications data, added national security.

Somewhat ironically, in view of political events, David Davis challenged DRIPA on the ground that it violated EU law, there were others involved including Tom Watson, and the Court of Appeal actually used the preliminary reference procedure to refer two questions concerning the ambit and application of Digital Rights Ireland to UK law. And those questions are currently before the Court of Justice, and the Advocate General whose name is entirely beyond my capacity to pronounce, has just delivered an opinion. He says that data retention may be compatible with EU law but only subject to the requirements of EU law as established by the Charter and subject to the court’s usual proportionality of requirements in a very complex formula, which I won’t go into. So that area, I think, will continue to be important and I’ll say why later. Other areas in which there might be an indirect impact of the Court of Justice concern Eurozone activity, I confirm there was Dr Beck said, and a case in point is the Short Selling Case which was not actually, technically a Eurozone case, where the UK and Chancellor of the Exchequer argued unsuccessfully that too much executive discretion had been handed to the EU banking agency and lost.

Again, Dr Beck mentioned the hotly political area of welfare rights of EU citizens and the case in which the Court of Justice ruled in favour of the UK in infringement proceedings brought against us by the Commission, but notably the Court, in dismissing the infringement proceedings ruled that the benefits or social security benefits within the meaning of EU law and as this reflects a number of rulings on social security and on EU nationality which are subject areas that are primarily considered in the UK to be within the competence of member states, this is another area where there may continue to be impingements of Court of Justice jurisprudence. What could courts do to lessen the impact on UK law? They could decline to make a preliminary reference as was notably done in the HS2 Case, but if they did so they might have to bear in mind that under Köbler and Republic of Austria, member state liability applies to the rulings of national courts, so there could, in theory, be the risk of possibly infringement proceedings even if we are on our way out of the European Union. After repeal of the 1972 Act, much of what will happen is clearly entirely speculative and I just have a few suggestions. First, obviously, the UK will wish to maintain and enforce the bulk of EU law, and will continue to interact in many areas with EU law if, for example, we negotiate a trade deal or an agreement giving us access to EU data banks which seems quite likely and then we shall almost certainly have to conform to EU law reverting back to the decisions that I’ve just discussed.

I thought that our courts might approach the interpretation of EU law, either they might reasonably decide that interpretation of EU law in Court of Justice decisions, anti- Brexit should be either binding or as good as binding, a mirror principle; they might continue to treat post-Brexit jurisprudence as binding in respect of EU law; and they might install the principle of Section 3 of the Human Rights Act and agree to take into account Court of Justice jurisprudence. But my own preferred solution would be a statutory amendment as was actually debated in the context of the Immigration Act of 2014 directing UK courts to take into account or take into consideration or to consider relevant case law of the Court of Justice of the European Court of Human Rights and Superior Common Law Commonwealth Courts because to me a pleasant side effect of Brexit ought to be a strengthening of the unity of the common law and closer relationships with long-term legal partners.

I think that in two areas Brexit might mean an influx of litigation and hard mental work for our courts, first because much of the work in the big competition and merger cases has been done for us by the Court of Justice, and it’s been suggested to me by someone who lost quite heavily out of the Sony decision in the Court of Justice that only the Court of Justice and possibly the US Supreme Court are actually strong enough to deal with litigation by bodies such as Google, Apple and the major banking institutions which operate very expensive and complex litigation strategies. Second point, Brexit will inevitably raise complicated problems over the competence of devolved parliaments in areas which return from EU law, notably perhaps (and I speak from ignorance here) in agriculture and social services. And in cases involving human rights there may very well be difficult questions to answer such as recently arose in the case concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, which the Supreme Court recently decided.

In conclusion I can’t actually see Brexit as posing insuperable problems for our courts, in which I have very great confidence, except in the even that it would result in the breakup of the United Kingdom and Scottish Independence or changes in the delicate balance of the constitutional arrangements in Northern Ireland might create a truly serious threat to the established and largely successful hierarchy of courts within the UK and might even result in the dismantling of the present Supreme Court. In my view, I dread that, and I would hope that in such a very undesirable position we would look back to the precedent of the Judicial Committee of The Privy Council as a final appeal court and arbiter of common law in the United Kingdom.



Lord Judge

Professor Lee.

Professor Simon Lee, Professor of Law and Director of Citizenship & Governance Research at the Open University, Fellow of St Edmund’s College, Cambridge, and Emeritus Professor of Jurisprudence, Queen’s University Belfast

Thank you very much. I’m here to celebrate the interaction of academia, the practice of law and politics in our constitutional culture and to reflect on particularly the words we use and the images we conjure up. I’m very pleased to be here at Policy Exchange for a number of reasons, one being that my nearest to a claim to fame is being mentioned in a book by Dean Godson –


Half a sentence in the biography of my former colleague at Queen’s, David Trimble. Since I wasn’t important enough to be in the index, I didn’t realise I was mentioned when I bought the book and for some time afterwards because it was a long way in! But I’m pleased to be here. And in a way I want to agree with Lord Judge at the beginning, it’s what one of my Professors at Yale, Bruce Ackerman, would have called a higher constitutional moment that we’re in. And it is a bit like the smaller but more intense setting of Northern Ireland where I was during the Troubles and the beginning of the Peace Process where you did feel that people were interested in the culture, the interaction between academics and law and politics.

So everybody knows that Lord Denning told us in 1974 in the case of Bulmer & Bollinger that the treaty, meaning the Treaty of Rome, is like an incoming tide, it flows into the estuaries and up the rivers, it cannot be held back. This is such a good metaphor or dazzling simile as Lord Scarman called it, that Lord Denning, of course, went back to it in 1978 in a case called Shields and Coomes, he said, ‘The flowing tide of community lawyers coming in fast has not stopped a high watermark, it has broken the dykes and the banks, it has submerged the surrounding land so much that we learn to have to become amphibious if we wish to keep our heads above water.’ And there we left watery metaphors until Policy Exchange, judicial power and John Finnis came back to them with a vengeance last year. John Finnis was talking about water cascading under the bridge and us being left adrift with flagship cases which were shipwrecks.

Picking up on that in Richard’s paper you can see some comment about some of the blogs which academic lawyers who voted Remain and can’t believe that the public voted to leave, have been coming up with objecting to everything. I voted Remain but I understand that that side lost. And David Runciman in The London Review of Books put it well, he more or less said get over it. He said, ‘17 million is an awful lot of people to be wrong, they can’t all be suckers or closet racists and they’re not all ignorant and so it was 52-48, but that was the margin for Obama, so don’t go on about it was a narrow margin either.’ But anyway, there’s a lot of whingeing and if I use The Strand as an example, it’s not just King’s or the LSE nearby or the Royal Courts of Justice or The Temple or the Law Society but that can stand for academia more generally. There’s a poem in the 1880s William Sharp called The Ebbing Tide and it begins:

A long, low gurgle down The Strand,

The sputtering of the drying rack,

The tide is slowly ebbing back,

With listless murmuring from the land.

And so on, but that’s really what’s going on at the moment in the blogs of academic lawyers. Or to give examples from before the Referendum, one of my old tutors, Chris McCrudden, said that it would be an unmitigated disaster if we were to leave in this Referendum, if it was to be a vote to leave. I suppose you could say that but for academics the point is to try and mitigate the disaster, if you think it is a disaster, and it’s interesting that academics are very caught up now with impact in a thing called REF, Research Excellence Framework, in which all the law schools try to claim that some case note or article on some case had enormous impact because some judge realised that they were wrong and then came to the conclusion of the academic, usually because they were good friends with that academic. But here huge swathes of academia have failed to have impact and it would be helpful if in the next REF exercise you could get minus marks –


For instance, the LSE Commission on the Future of Britain in Europe, the enormous amount of work, 11 hearings and so on, concluded the evidence in its own report was measured, it said: ‘They suggest the least risky vote is for the UK to remain in the European Union.’ Well, that was an enormous amount of work rejected by the British public. And I think that there is a need for some humility on our part in this but we do have a role and in my own case it has sometimes been pointing out very basic things about the rhetoric. For instance earlier in this debate in February in the main debate in parliament on the Referendum, Jacob Rees-Mogg teased and taunted the Prime Minister, the then Prime Minister, by saying, ‘Is the government’s policy basically always keep a hold of nurse for fear of finding something worse?’ And I pointed out (which had no impact at all) that (he was quoting Belloc) that he seemed to have forgotten what happened in the rhyme, which was: Little Jim let go of nurse and got eaten by a lion!


And instead of pointing that out David Cameron said, ‘But to exit would be a leap in the dark,’ in turn forgetting that that phrase in parliament was used by the Earl of Derby backing up Disraeli on extending the franchise in the secondary format, in other words it’s a good thing. So you could go on and on about our culture but I want to say a few words to the Right and to the Left and bring it back to us academics. To the Right, talking with the cat being out of the bag, now that Theresa May is the Prime Minister one of the most important cases is apparently this one about a cat, if you remember. You may recall as recently as April the Prime Minister was in favour of coming out of the European Convention and in a Conservative Party Conference speech she said in a Blair-like set of sentences without verbs, ‘British values and institutions, the rule of law, democracy, equality, free speech, a respect for minorities, that’s what it’s all about.’ And she gave another example of the problems with the European Convention of Human Rights culture in saying that somebody couldn’t be deported because of their cat and then the media pointed out that this wasn’t really completely the full story. I’ve been reading the cat’s judgements. This cat, by the way, in the appeal is anonymised.


Senior judges in a celebrity injunction case have taken to anonymising almost everything –


And you get square brackets, but I can reveal the real name of the cat –


Is Maya, as in Theresa May, May-a, or Mia, and what the original immigration judge actually said was, ‘The evidence concerning the joint acquisition of Maya by the appellant and his partner reinforces my conclusion on the strength and quality of the family life that the appellant and his partner enjoy. In Canada and the United States there is an increasing recognition of the significance that pets occupy in family life and of the potential serious emotional consequences pet owners may suffer when some unhappy event terminates the bond they have with their pet.’ And then rather unfortunately the appeal immigration senior judge who was really, I think, trying to have fun which perhaps wasn’t very sensible and then says, ‘The cat need no longer fear having to adapt to Bolivian mice.’


But anyway I want to suggest that instead of going on about the cat there are some good cases which are being forgotten but in the spirit of going back to the seventies with the European Communities Act and so on, there are some important cases which give the flavour of how judicial power can be used rightly and isn’t just a question of European Convention or European Union law. And the case that I’ve written about recently from 1975, exactly the time of the Referendum that I also voted Remain in, is Crown and Home Secretary ex parte Phansopkar and Begum. There were two women, one from India, one from Bangladesh, who had patrial rights to come into the UK and the government was saying no, you can’t come into Heathrow, you have to have your certificates shown and so on, back in Bombay, Mumbai or Dakar. I just want to make the point that the Court of Appeal said that the Home Office was wrong. I think this is a good exercise of judicial power, they invoked Magna Carta, Justice Delayed, Justice Denied, a couple of them referred to the European Convention on Human Rights, Lord Scarman, for instance, referred to the European Convention on Human Rights, but the Home Secretary was Roy Jenkins, his special advisor was Anthony Lester, his Counsel was Harry Woolf. These are the icons of civil liberties, human rights, they were very busy on race and sex discrimination and yet they were being difficult with women who have the right to come in and they were saying you’ve got to go and wait 14 months, even though nobody in their position had ever been refused, it was just a delaying tactic. So it isn’t simply about cats and Bolivia and so on, but there is a balance to be struck in this constitutional conversation.

I could give lots of examples but I also want to give an example of a statute that is ignored by judges and politicians at the moment, it’s a very simple one and it’s relevant to the next debate. The Human Rights Act 1998, lots of people are in favour of it come what may, if I can use the word may there, but the actual wording of it in Section 12 and Section 13, says that judges must have particular regard to two rights, freedom of expression and freedom of religion. They’re in there because the government couldn’t have got it through parliament without them for all sorts of reasons, the media, pressure on the freedom of expression, Cardinal Hume and others with the Anglican Bishops on freedom of religion. And so those texts are in there but they don’t sit easily because the idea of the European Convention is that those rights will only have the same status as other rights and so the solution is to ignore them. So when people say we should or shouldn’t change the Human Rights Act it’s useful to focus on these sorts of examples and you can see a case coming from Northern Ireland, that is to say, the gay cake case, we’re about to have judgement from the Court of Appeal, no doubt we’ll go to the Supreme Court where you can see those two rights in action and it will be interesting to see how that happens.

So my point is that we are in a kind of big debate, a dialogue, it is important to attend to the wording of decisions, to challenge the use of metaphors, and I think that there is a role for academic lawyers, it’s not just the research which I mentioned at the beginning but also the straightforward teaching. I was taught four subjects as an undergraduate in tutorials by somebody sometimes described as the greatest living legal philosopher, Joseph Raz, nobody would describe him as the greats English constitutional lawyer, administrative lawyer or European lawyer but he did teach me those four subjects, constitutional law, administrative law, jurisprudence and European law. This was in the late 1970s. And the kind of problem question we were set in exams by Bernard Rudden shows the kind of spirit of the course in those days, the standard problem question was: You were skiing down a skimmed milk powder mountain and fell over and injured your leg, could you sue the European community? Those are the big questions. But the questions that Joseph Raz who writes about legal systems, the rule of recognition was addressing, included these ones about what would happen if we left what was then the European Community, now the European Union? And Lord Scarman in his famous lectures, English Law, the New Dimension, writing in ’74 says, ‘If we stay in the Common Market I would expect certain things to change,’ because this was in the run-up to that Referendum in 1975. So I want to say that all that stuff about what it is to withdraw, to have the ebbing tide, is something which I was thinking about in the 1970s.

As a final comment on that in my college at the same time other people were doing other things. There was for instance the President of the Oxford Union, Damian Green, now Secretary of State for Work & Pensions; there was the hard Left organiser of the Junior Common Room, Seamus Milne, now advising Jeremy Corbyn on strategy and communications; and there was in the Law Library for his soctorate, Robert Reid, next door at the Supreme Court of Justice. I think we are all touched by our education reflecting on this phrase the rule of law, reflecting on the challenge of a legal system then acquiring a new dimension and now seeing that dimension ebb away.

Thank you very much.


Lord Judge

It is half past five, if you want to go, please do, if on the other hand you’d like to stay and ask some questions and listen to the answers, please stay. Well, that’s very good. You go first, would you mind saying who you are and where you’re from or whether you’re an academic, a practicing lawyer or whatever, so that we all know where you come from.

Jeremy Thomas, Teacher of History

That’s fine, shall I stand up?

Unknown Speaker

There’s a general microphone coming towards you.

Lord Judge

Don’t worry, try without it. And if you turn round and let the people at the back hear, we’ll pick it up.


Jeremy Thomas, Historian

That’s fine. I’m Jeremy Thomas, I’m a teacher of History attached to university system, I work for the German university system in actual fact. If I may take up with Professor Ekins a point that he made not in his remarks but in his supporting paper and he made the mention in his remarks on the Charter of Fundamental Rights. So I should like to ask him and other members of the panel has it been tried at law before the Court of Justice whether those rights are considered alienable or inalienable? In the latter case, how far would that impose limits upon the right of government or parliament to set those rights aside? Now I do not lay claim to any more than a of knowledge of statutes and treaty which is the customary lot of this historian, but I merely ask because I’m not a member.


Lord Judge

Thank you. Richard.

Professor Richard Ekins

Well, I’ve got a brief answer on that and if Dr Beck wants to have a comprehensive one he can. The Charter provides for a limitation on certain of the rights which are framed in very general terms as limited, however, they are incapable of being departed from as a matter of EU law. As a matter of domestic British law if parliament wants to do otherwise then as required, it can do so, it just places…it can give it a great deal of difficulty with the European Union, which is part of the reason for Brexit. But I’m not sure what more one can say on that. There was an argument… Simon mentioned that academic lawyers come out with… invent new arguments every day. There was another one today which was the Charter… EU law includes the Charter of Rights, the Charter of Rights is very important, therefore before the government can do anything that would make the Charter of Rights no longer hold, it must have an express Act of Parliament telling it they must do. To my mind this is no different to all the other arguments, the Charter’s part of EU law and the way EU law comes to bear in our laws is by way of the European Communities Act which takes for granted there are other treaties out there and if the government uses its capacity under a treaty to bring those treaties to a close, the European Communities Act makes provision for that, so I don’t think it adds anything, to my mind. But if you want a more detailed answer on the Charter –


Lord Judge

Dr Beck, three sentences?


Dr Beck

That was fairly comprehensive –



I can always add to that. I suspect by in alienable you mean that they would somehow survive British departure from the European Union. The answer to that is no because the Charter in its horizontal provision states quite clearly that it applies only to the Union institutions and the member states when they are implementing Union law, so it is not the fount of the general Human Rights jurisdiction.


Jake Ross, Former Accredited Lobbyist to the European Parliament

I’m a former Accredited Lobbyist to the European Parliament which is one of my greatest achievements. I work in the financial service area. I’m not a lawyer but my understanding is even if we leave the European Union we’ll still have to adopt EU legislation without political oversight or veto, if you could make some comments on that? I find that very hard. Thank you


Lord Judge

Would you like to go on that?


Dr Beck

Well that will depend on the arrangement Britain and the EU finally adopt and agree on. Assuming an arrangement is agreed whereby Britain retains access to the single market in the sense that goods can continue to trade pretty much as they do now and financial services be offered transnationally, then it is… I mean that was the point I was alluding to in my concluding remarks, it’s very difficult. I mean such an arrangement exists under the EEA, i.e. in the EU’s trade relations with Norway being the most important, Lichtenstein and Iceland, an agreement exists which allows for precisely such single market access. Now there was a special Court set up to deal with disputes that arise in the non EU EEA member states for reasons of simplicity, let’s say Norway in lieu of EEA member states. Now the EFTA Court decides such disputes but under something like, I think, Article 106 of the EEA Agreement, it is bound to have regard to the decisions of the Court of Justice. So the short answer is that if Britain wishes to retain access to the single market, an obstacle would be that the EU would almost certainly insist on the implementation of EU legislation. That would imply that future Court of Justice judgements would determine how this legislation is to be construed.


Professor Carol Harlow

Can I just add one thing?


Lord Judge



Professor Carol Harlow

There could be considerable indirect impact of EU law. For example, when I was in Australia I found that lawyers had a great deal of work advising on the EU and particularly its regulatory and administrative law and that again involved rules about interpretation, although obviously Australia isn’t a signatory to those treaties. So in the modern world where we have these incredibly difficult trade agreements the impact of courts could be the dispute resolution system in the World Trade Organisation, they have inevitable impact.


Professor Simon Lee

In Bulmer & Bollinger, the Lord Denning case by the way, Bollinger didn’t win, they came back in ’78 and didn’t win again, this time complaining about Babycham. But last year the Australian courts dealt with a case where France, the Champagne region, had a bi-lateral agreement with Australia, and they were complaining about a woman calling herself Champagne Jane. And again they didn’t win completely but they won on some of those points but there’s a huge bi-lateral trade negotiation on whether you can call Australia’s sparkling wine Champagne.


Lord Judge

There’s a hand raised at the back first and then I’ve got a voice here and then I’ll come to you.


Paul Tucker, Harvard, Chairman of the Systemic Risk Council

I’m Paul Tucker, Harvard, Chairman of the Systemic Risk Council –


Lord Judge

Do you mind awfully standing –


Paul Tucker

Oh sorry! Paul Tucker, Harvard, Chairman of the Systemic Risk Council, I used to be a central banker. In the forty-odd years we were a member of the EU, executive government has been transformed, lots of it has been delegated to regulatory agencies and central <interruption>

A couple of times Richard in particular but others of you as well, referred to the growth in executive dominance and the broad question I’d like to put to you and the Dean in a way, is when you talk about judicial power whereas you know, really I share your reservations, why don’t you accompany it with concern about executive power and the restoration of parliamentary power? The reason the two, I think, are linked is that if we remain where we are, executive power, so ministers being able through secondary legislation effectively to repeal parts of outdated or cumbersome, burdensome, primarily regulatory legislation, isn’t that more likely to end up in the courts than if those decisions were taken in parliament itself? Put another way, if those who are nervous about judicial power hanker after political constitutionalism rather than legal constitutionalism, do we wish that political constitutionalism to be based in our parliament or are we content for it to be based in the executive which certainly compared with when I started out, tends to be concentrated in far fewer hands than it used to be.


Lord Judge

Thank you. Richard, you go first.


Professor Richard Ekins

Well I agree with much of that, so I think they are related and the concerns, if one cares about parliamentary democracy then one should have a concern about the various ways in which it can be distorted, one of which I think is problematic judicial action but another certainly is foolish choices about the design of government and parliament’s choice to authorise ministers to amend Acts of Parliament by order and so forth.

I mentioned the rise of executive government, in one way I was reporting a claim made about it because… I mean plainly executive government’s a complicated thing. The claim that ministers ever more dominate parliament I think is actually… it rolls off the tongue quite nicely and it shows up in judicial lectures but it’s not quite as powerful a claim as all that, it’s a more complicated relationship than that. What you’re pointing to is something a little different, I think, which is the hiving off of particular functions to new bodies and one should have a very serious enquiry into whether those are sound choices or not. So I think that’s all I’ll say about it.


Lord Judge

I’m going to say something because I’ve said this publicly, I think you’re entirely right, I think parliament frequently gives far too much power to the executive. I myself would never agree to a Henry VIII clause, I simply cannot see why a Henry VIII clause which involves the repeal of an existing Act of Parliament should be done through the parliamentary process. I’ve been told on all sides this is completely unrealistic, government couldn’t work but I simply don’t accept it. Nobody else is allowed to suspend statute, nobody else is allowed to dispense with statute, parliament dispense with statue, parliament reform statute, it would be parliament, I hope, that will decide that we were going to repeal the European Communities Act, nobody will think of putting that into a Henry VIII clause. I’ve said my piece on that.



Michael Harris,

I want to return, if I may, to the previous answer about the extent to which the United Kingdom would have to comply with EU regulations if we leave. Now I may have misunderstood the answer but surely if we bear in mind the distinction between access to the single market and membership of the single market, if we’re talking about access, why would those companies which wish to sell goods and services into the European Union would no doubt have had to comply with the standards of the European Union, just as they have to comply with standards in China or the United States or anywhere else; countries which don’t wish to European Union would not have to comply with those regulations. So I thought the previous answer implied that the country as a whole would have to retain the standards and regulations of the European Union, and surely that would not be the case?


Dr Beck

That’s correct, it would… Single market legislation would be relevant insofar as it is relevant to a trade agreement between the United Kingdom and the EU, is that any clearer? I mean I’m quite sure that the way I phrased it initially, perhaps now, didn’t necessarily clarify the… I was talking primarily about the EEA agreement where –


Michael Harris 


Dr Beck

OK, fine, quite!


Professor Carol Harlow

There could be two different situations, first that general agreement if the country decided to enter into it, but secondly we could be in the position of Australia which is what you’ve described.


Lord Judge

Yes, you’re next.


Philip Johnston, Chief Legal Writer for The Daily Telegraph

My name’s Philip Johnston, Chief Legal Writer for The Daily Telegraph. Could I ask, Lord Judge referred there to the European Communities Act, the assumption seems to be, and I think Professor Harlow said the same, that this repeal will cover the opening process rather than the beginning the process. Looking back at the ’75 Referendum it appeared that the then government had proposals to repeal each of the decisions It didn’t happen but started to unravel but why can this not be done at the beginning of the process as a manifestation of Brexit, maybe with an enabling bill to say that we are no longer subject to the ECJ and then we could negotiate between .


Professor Carol Harlow

I did think about that when I was making that remark but I felt that actually I didn’t know enough about it technically so I simply borrowed from Sir Stephen Laws who makes the point that it would leave, he says, unmitigated chaos, because it would leave in limbo all the laws, regulations, which are particularly dense in the agricultural area, in a position which needed to be saved and not being that sort of technician I just dropped the point, so I can’t answer the question.


Lord Judge



Professor Richard Ekins

If we repeal, if we banish European Union from our legal system… and if we do that before we actually leave the treaties, then we’re in breach of European Union law and that causes a great world of diplomatic difficulty.


Philip Johnston

Do you not deem all the laws that have been passed since UK law?


Professor Richard Ekins

If your Repeal Act carries it on then in one way… what, while you’re appealing it perhaps? You could repeal it and just post-date the commencement of the repeal until the point at which the treaty is in, that might be quite wise, especially if you have the political force to do so now rather than… who knows what will take place in three or four years’ time or whenever it may be? But I think you can’t, simply for the reason of chaos, simply cancel all European Union now, you need a complex transitional scheme. It might not be very complex actually, it all continues until it’s cancelled piece by piece but you’ve got to be careful, I think, about how you conduct the dismantling of the relationship, given the international arrangement.


Professor Carol Harlow

Also it might be another of those things which is legally possible but politically unwise!


Glyn Gaskarth, Head of the Crime and Justice at Policy Exchange  

I just wanted to ask a question on immigration and I think that this is one of the issues in the Referendum. Clearly there’s going to have to be some moves to reduce immigration as part of the EU deal but there’s been questions around the timing of that because obviously being controlled, in fact they encourage more people to come in before that date, there might be that pre-formal Brexit certainly. So my question is, is the fact that we’re going to have to deal with , if the UK Government wants to do this in a process which is completely legal with regards to the ECJ’s approach, how would they do it, could there be an emergency brake in immigration in order to manage that transition, do you think that would be possible, aside from much of the politics. Then second of all if we took this approach on immigration, as seems to be the case with trade, as to we were to do this, impose controls in this case and , how would the ECJ respond in that case?


Lord Judge

We’re departing a very long way from judicial power, I would remind you every question so far has been very far removed from judicial power, so we’ll allow another political question. Go on Richard, you go first.


Professor Richard Ekins

Well, I suppose in a way this is related to the previous question, to what extent should Britain unilaterally cancel European Union law? It’s always been capable of doing so, it’s just had very good reason not to do so. I think it probably has pretty good reason not to do so going forward until the point of actual Brexit because there’s going to be a relationship amongst Britain and its neighbours for a long time hereafter and we hope for various productive agreements and so forth.

Now one way…If you can’t control numbers between now and Brexit but you can make decisions and publicly announce them and act with a view to them taking force upon Brexit as to the position as it will be then. And so it might well be that from today or from 31 December, persons who arrive and take up their rights in EU law to reside here will not enjoy the position that people who have been here today, yesterday or for 5 or 15 years hence have had, but you can’t implement that without causing a great world of difficulty but you can certainly decide it with a view to what will take effect on Brexit.


Glyn Gaskarth, Head of the Crime and Justice at Policy Exchange  

At that point they would have had those rights under European law


Professor Carol Harlow

Yes, there would but it’s not really possible to answer questions that are so… hypothetical is not, perhaps, the right word, but the only suggestion that I’ve seen made is that Angela Merkel would like the emergency brake solution, but it’s not clear whether the Council would support her and again that would be somewhat ironic in view of David Cameron’s trip into Europe earlier, was it last year or this year? So I just think that’s an unanswerable question at the moment.


Unknown Speaker

I just think this is going to be the issue judicial power because


Professor Richard Ekins

After Brexit pending whatever the details of the agreement that is reached between the UK and the EU which we don’t know, it is perfectly capable of Britain to decide that, to decide now but to implement it at that point without being subject to the Court of Justice settling it. So unless we bind ourselves in a certain way with an agreement to what’s going to take place later, the British parliament and the government acting in accordance with parliament’s directives will be able to make its decision on that point.


Lord Judge

I may just return to the point raised by the previous question, in theory, I don’t in theory there’s anything to stop parliament repealing the 1972 Act tomorrow but I think in practice that is so improbable and the consequences would be so astonishing for our negotiations that it won’t happen and that’s why I think it will happen at the end of the process. We would also be in breach of our treaty obligations, we’d have failed to abide by our own obligations as we accepted them and I’m not sure that’s a very good starting point for a negotiating position.

Right, I think probably we’ve done pretty well, I think that you’ve been patient with us long enough; I want to thank on your behalf all four of our speakers. I’m sorry I didn’t introduce them with the necessary courtesy. If you want to know who they are in detail there are pages and pages about them which Richard will put onto our website and on the texts what you had to say –



They’ll be coming next week, yes.

Lord Judge 

And so they’ll all be on the website and what you got from each of them was rather an attenuated version of what I suspect was a series of rather learned papers. Thank you all four very much indeed.



Richard Ekins

Head of the Judicial Power Project

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