Brexit: a legal trap

13/01/2020

Today, the House of Lords is to entertain itself with the second reading of the European Union (Withdrawal Agreement) Bill 2019-20. This, when given Royal Assent, will amend the 2018 version and provide the legal template which will enable the UK to execute Brexit.

But, while it has been given a free passage in the Commons by Johnson's adoring claque of newly-elected MPs, reservations on certain details are being expressed, and may be the focus of some argument when the Bill is debated today.

One such issue came to the fore on 18 December, when it was reported that the lower courts would be given the power to roll back case law arising from ECJ judgements. This was a departure from the 2018 version where the incorporation of all ECJ case law would have left the supreme court as the only body able to overturn these decisions.

Typically, the Guardian , noting that Downing Street had confirmed the plan, wrote of it in alarmist terms, focused on its particular issues of interest. Thus it reported that the plan had "prompted concerns" that it would become easier to challenge European standards in areas such as workers' rights and the environment.

At the time, a Downing Street spokesman said: "The Bill will ensure that the supreme court is not the only institution able to consider retained European court of justice rulings. This is an important change, which will ensure that we do not face a legal bottleneck and inadvertently stay bound by EU rulings for many years".

Needless to say, this was accompanied by a dose of the Johnson mantra, with the spokesman adding: "We will take back control of our laws and disentangle ourselves from the EU’s legal order, just as was promised to the British people".

However, taking back control is not exactly the issue. What is dealt with in the new Bill (clause 26) is the level at which case law may be disapplied. And, given that case law is effectively the law of the land, this is of some importance as it can override or modify statute law.

In my own time, I've had some interesting times with case law, in particular provisions on the contamination of food. In the old 1970 Regulations, there was a prohibition on the exposure of food to contamination, failure to conform with which was a criminal offence. The Regulation, though, was modified by case law, requiring that any "contamination" had to be harmful to health.

When one of my clients was faced with prosecution for placing a tray of raw chicken carcases on the floor, partly in contact with a less than clean table leg, EHOs were confident of a conviction. However, I successfully argued in court that the primary source of contamination, in accordance with the case law definition, was the raw chicken. And while the dirt of the table leg had been unsightly, it was my experience that long-standing organic dirt has a bactericidal effect.

Thus, in my view, this was not a case of the table leg contaminating the chicken but the other way around. And since there was no intention of selling the table leg for human consumption, there was no offence.

Such is the impact of case law that one quite obviously needs to be careful about how, when, and by whom it is changed. Hence we see in today's Times the celebrated QC, David Pannick, expressing his own concern about Clause 26.

There is no question of peers trying to block the Bill, he says, but we will perform our function of scrutinising the legislation and, where appropriate, make suggestions for improvements to its content. And, he avers, Clause 26, concerning judgements of the Court of Justice of the EU, requires particularly careful scrutiny.

Setting the scene, Pannick reminds us that, when we leave the EU, much of the EU law will, for the time being, remain in our legal system - so-called "retained" law. To ensure legal continuity and certainty, he says, the Bill confirms that almost all of the EU law which currently applies in this country will continue to do so unless and until parliament or ministers amend or repeal it.

That law, as it stands, includes all judgements previously handed down by the ECJ, with the original 2018 Act stating that such judgements would remain binding on our courts and tribunals, unless it was overturned by the Supreme Court and the final court of appeal for Scottish criminal cases, the High Court of Justiciary.

Crucially, in the interests of ensuring continuity and certainty, only those courts could overturn the ECJ judgements. But Clause 26 adopts a different approach. Ministers, says Pannick, are to be given power to make regulations governing which of our courts and tribunals should, after the end of this year, no longer be bound by these judgements. Additionally, Ministers will be able to regulate the binding force of previous decisions of our own courts when they applying EU case law.

Pannick has two concerns about this. Firstly, he writes, legal certainty will be undermined as we leave the EU if lower courts are given power to reverse well-established decisions on competition law, environmental law and equal pay, among many other subjects.

Precedent – as he rightly reminds us - is vital to the integrity of our legal system. If settled case law could be overturned in lower courts, a flood of litigation would hit companies and individuals. And it will come as no surprise to learn that the main beneficiaries of such litigation would be lawyers.

You can actually imagine the situation. While case law is widely published, and available on the legal databases used by practising lawyers, that is not always the case with the decisions of lower courts and tribunals. A case, therefore, which was decided on the basis of an ECJ precedent, could be upheld in one court or tribunal, but overturned in another, bringing something close to anarchy to the legal system.

For his second concern, Pannick suggests that ministers should not be giving themselves power to regulate a fundamental aspect of our legal system – this is not something in which Ministers should interfere.

Deciding which of our courts should no longer be bound by these precedents, he says, and what test judges should apply, is a matter of principle for parliament to determine, after full debate, especially in a system that values the separation of powers between the judiciary and the executive.

Pannick then goes on to add that the parentage of clause 26 is "unknown". It certainly does not look like a child of the Ministry of Justice and the attorney-general’s department, he says, leaving us to wonder why it was inserted when the hazards are so evident.

One suspects, however, that doctrine rather than legal sense is at work. And the implications are even more profound than even Pannick indicates. When we are entering a process of negotiation where the degree of alignment will determine the level of access we are given to the Member State markets, this will undoubtedly assume that conformity with EU law includes conformity with relevant ECJ judgements.

Where, however, these judgements can be overturned by the lower courts, and even tribunals, often without the knowledge of Ministers, in a process they themselves have initiated, the EU would be entitled to take the view that the UK is no longer in a position to police or enforce any trade treaty it secures. At the very least, it might make any treaty agreement conditional on the removal of the amendments introduced by Clause 26.

Should the Clause amendments survive, the UK could in future, find its own trade agreement with the EU undermined by its own courts, and be forced to intervene to reverse their judgement, in order to preserve the integrity of the treaty.

This is not really a situation in which the government wants to place itself, as there will be, no doubt, break clauses built into any new treaty, operable in the event of non-compliance by any party. The government could find itself continually fire-fighting, just to maintain the status quo.