Chapter 6: The impact of Brexit on the legal landscape
Introduction
181.This Chapter highlights some potentially negative impacts on the legal system as a result of Brexit, which were raised in evidence. These are: the impact of Brexit on the influence of the UK legal system and the potential effect on individual rights.
The impact of Brexit on the influence of the UK legal system
182.We took up this issue with the senior judges who gave evidence at our initial scoping evidence session. Lord Thomas of Cwmgiedd told us:
“One of the very big issues that the Committee may wish to think about in due course is how we, in a relatively small jurisdiction set between two very large jurisdictions, the United States and the European Community, will have an influence on the fashioning of the law for this new marketplace once we leave the Community. It is … inconceivable that being a relatively small country interposed between many other large trading blocs we would have a regime that people would be very happy to go along with. Our better course is to try to influence the other regimes and hope that they produce some kind of overall uniformity.”132
183.Lord Hope of Craighead noted that post-Brexit there would be no opportunity for a non-Member State to be heard by the CJEU:
“Normally where a case affects a number of states, a number of them would intervene … Once we leave we will not have that opportunity, so our voice would not be heard, not only because we would not have a member of the court but because we will not even have an opportunity to attempt to guide or influence the way the court looks at a problem.”133
184.Hugh Mercer QC and Professor Barnard stressed the positive influence UK lawyers had played in developing EU law,134 and the General Council of the Bar of England and Wales agreed that “it is widely recognised that British barristers, advocates and judges have made an outstanding contribution and have wielded very significant influence in the CJEU since UK accession in 1973”.135
185.Looking ahead, however, Dr Hélène Tyrrell (a lecturer at Newcastle University) believed that “the ability of the UK to influence the development of law in other EU jurisdictions post-Brexit is likely to be reduced in matters governed by EU law”. In particular, she said: “Given the altered domestic legal regime, it will be less-likely that courts of jurisdictions in the EU would refer to the jurisprudence of UK courts because the UK would no longer share the same interpretative obligations.”136
186.This point was also made by the General Council of the Bar of England and Wales, which argued that the Brexit was likely “inevitably to weaken the international standing of the UK as a source of EU law”. It noted various direct impacts, including the loss of UK judges and advocates general in the CJEU; the detachment from the preliminary ruling procedure; and the lack of any right to participate in cases before the CJEU, which it described as “one of the most powerful and influential international courts”.137 It also noted what it described as “indirect impacts”, including the fact that “parties may be deterred from selecting English law as their applicable law for contracts or the English Courts as their choice of forum for dispute resolution if judgments will not be automatically recognised and enforced in other Member States”.
187.The impact of Brexit on the common law world is more difficult to assess. Dr Tyrrell suggested that:
“The UK’s influence in the common law jurisdictions would not necessarily be affected by the altered relationship with the EU. Given the shared legal heritage, the courts of common law countries frequently refer to each other’s jurisprudence.”138
188.We recognise the substantial positive influence that UK lawyers and judges have played in the evolution of EU law. After Brexit, the ability of the UK to affect the development of case-law in the EU is likely to be diminished significantly. Given the importance of the jurisdiction of the CJEU internationally, this may have a negative impact on the international standing of the UK’s common law system.
Mutual recognition of judgments
189.We considered the issue of the impact of Brexit on the EU legislation facilitating the mutual recognitional of civil and commercial judgment in our report Brexit: justice for families, individuals and businesses? (see Box 2).
Box 2: Justice co-operation in family law cases
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In our report, Brexit: justice for families, individuals and businesses?, we identified a number of examples where, if the so called ‘Brussels regime’ of Regulations were not replaced, the personal lives of adults and children would be affected and the family law rights of UK citizens would be undermined. We said that to walk away from these Regulations without putting alternatives in place would be “an act of self-harm”. An example of the sort of issue that could arise is contained in the following case study on the EU Maintenance Regulation (4/2009). An English woman marries an Italian man in England. The relationship breaks down and a divorce is agreed in England. After the divorce, the father returns to Italy and refuses to make maintenance payments. Under the Maintenance Regulation, the mother can apply to a court in England and Wales for an order and can seek to enforce that order in Italy through a court order from England and Wales. Alternatively, she can apply through a central authority in Italy for an order for maintenance. After Brexit, it is far from clear how she would be able to enforce her rights. |
Source: European Union Committee, Brexit: justice for families, individuals and businesses (17th Report, Session 2016–17, HL Paper 134)
190.We took evidence on the issue of mutual recognition of judgments and civil justice cooperation as part of this inquiry, since the Government’s response to our report Brexit: justice for families, individuals and businesses? highlighted limited progress. We have grave concerns about these issues, and we will revisit them shortly.
What impact will Brexit have on rights?
191.In its ‘Future Partnership Paper on Enforcement and Dispute Resolution’, the Government asserted that ending the direct jurisdiction of the CJEU in the UK would “not weaken the rights of individuals, nor call into question the UK’s commitment to complying with its obligations under international agreements”.139
192.Professor Barnard, in contrast, was clear that the European Union (Withdrawal) Bill, as introduced into the House of Lords, would cause “losses of rights for businesses and citizens”. She gave three examples. The first was the loss of the Charter of Fundamental Rights, which would “generate a lot of problems”. She noted that the EU (Withdrawal) Bill “says that the general principles that are expressed in the Charter will be carried over”. However, she contended that the Charter “is at least reasonably transparent on what the rights are, but the general principles are not clear. I imagine that every lawyer in this room would come up with a slightly different list of what constitutes a general principle.”140
193.Second, she noted that Schedule 1 of the Bill provides that “those general principles do not have direct effect and cannot be enforced”. She argued that “if you cannot enforce the general principles, by definition you cannot get a remedy”. Finally, she noted that Schedule 1 also says that after Brexit there would be no ability to bring an action for what are known as ‘Francovich damages.’141
194.Hugh Mercer QC expanded on Professor Barnard’s second point. He said that in circumstances where general principles of UK law were not available to challenge a Minister’s decision, that was “a clear downgrading of rights”. He added that it “seems to be trying to isolate the Government from judicial review and reduce access to justice at the cost of individuals and businesses”.142
195.Perhaps more far-reaching is the fact that, by ending the jurisdiction of the CJEU and the supremacy of EU law, one of the restraints on Parliament’s freedom of action will be removed. At present, an individual may challenge legislation enacted by Parliament that deals with matters of EU competence—for instance, equality law relating to equal pay. The individual may seek to have the courts disapply the statute if it conflicts with EU law, and the domestic courts may, in considering such an application, refer questions of EU law to the CJEU. After Brexit, this would not be possible.
196.Sir Richard Aikens did not see this as a diminution in rights: “A democratic decision has been taken, and assuming that we are going to leave, you cannot say that somebody’s rights are diminished when the whole legal framework has changed.”143 Martin Howe QC agreed that “there is a distinction between the substantive content of rights and the mechanisms by which they are adjudicated on or enforced. The substantive rights … will not change.”144
197.We asked the Minister, Lucy Frazer MP QC, about the impact on litigants who would no longer be able to seek an interpretation on EU law from the CJEU. She replied: “Some would regard being stuck with parliamentary sovereignty as a good thing, but you are right; there would be no reference” to the CJEU post-Brexit.145
198.Without the supremacy of EU law, the loss of access to the CJEU is not the end of the matter. The Government argues that the UK has rigorous domestic equalities legislation, parts of which predate or go beyond EU provisions.146 This is true, but it remains at least theoretically possible that substantive rights could be subject to amendment by a future Parliament. If such a Parliament enacted a clear statutory provision which directly repealed, or curtailed, even fundamental rights, the domestic courts would no longer be in a position to draw on EU law to overturn such a provision.147
199.The Government asserts that ending the direct jurisdiction of the CJEU will not weaken the rights of individuals. The evidence received in this inquiry demonstrates that the ability to request a preliminary reference from the CJEU, combined with the direct effect and supremacy of EU law, has sometimes acted as a check on Government action. This check will be lost as a result of Brexit, and so the rights of individuals will be weakened.
135 Written evidence from the General Council of the Bar of England and Wales (the Bar Council) (BED0011)
137 Written evidence from the General Council of the Bar of England and Wales (the Bar Council) (BED0011)
139 Department for Exiting the European Union, Enforcement and dispute resolution:a future partnership paper (2017), para 24: https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper [accessed 18 April 2018]
140 Q 26.We note that on 23 April 2018, the House of Lords voted to accept amendments relating to the retention of the Charter of Fundamental Rights. It also voted to remove the provision in Schedule 1, paragraph 3 of the Bill which stated that although the general principles of EU law are to be part of retained EU law they cannot provide a cause of action.
141 Francovich damages were first developed by the CJEU in the case of Francovich v. Italian Republic, C-6/90, [1992] IRLR 84: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61990CJ0006 That judgment made clear that if a State is in breach of EU laws—specifically, in that case, by not implementing a Directive—and an individual suffered loss as a result of that failure, that individual could bring an action for damages against the State.
146 Government Equalities Office, Equalities legislation and EU exit, December 2017
147 See for example the judgment of Lord Hoffmann in R v. Secretary of State for the Home Department ex parte Simms [2000] AC 115: https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990708/obrien01.htm