Brexit will have a decisive effect in altering the relationship between the case law of the Court of Justice of the European Union (CJEU or ECJ) and that of England and Wales, but it would be a mistake to assume that European case law will shortly become irrelevant.
Even after the passage of the Great Repeal Bill into law, cases decided by the Court of Justice in Luxembourg will continue to affect (and indeed bind) the decisions of domestic courts in relation to those laws which the Bill will preserve as domestic law. This much is clear from reading chapter 2.12 of the government’s white paper, Legislating for the United Kingdom’s withdrawal from the European Union (Cm 9446), published 30 March 2017.
However, those ECJ cases will have a sort of half-life, their effect gradually being depleted over time. They may continue to be good law, and to bind the courts in other jurisdictions within the European Union, but in our own domestic courts they will apply only for so long as they (or the legislative provisions to which they relate) are not superseded by new domestic law.
For this reason, we at ICLR will continue to publish law reports of the Luxembourg court, certainly for the foreseeable future. We have already published a considerable body of such case law, and much of it has been cited and applied in subsequent domestic cases. The Great Repeal Bill cannot rewrite legal history, and those cases will continue to be good law.
Lord Denning MR once famously characterised EU law as
“like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”
Denning (who said his name was derived from the Danes who once invaded the English shoreline) later expressed himself more forcibly:
“No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses — to the dismay of all.”
See The European Court of Justice: Judges or Policy Makers? by Gavin Smith (London: Bruges Group, 1990), foreword by Lord Denning.
Brexit will do what the tenth century King Cnut famously proved he was unable to do: reverse the tide. And looking at the matter in a more positive light (one must try, after all, to do so), the decommissioning of EU case law will restore the supremacy of our common law — that “living instrument” dating back to the reign of Henry II and exported to the rest of the English-speaking world.
However illusory the process of “taking back control” might be in the political and economic arenas, there is little doubt that English courts (except, say, where contracts are governed by foreign law) will be “taking back control” of English law. However, there are some interesting points to consider, on which today’s white paper is not conclusive.
The paper makes clear that in leaving the EU “we will bring an end to the jurisdiction of the CJEU in the UK”. But while the Bill “will not require the domestic courts to consider the CJEU’s jurisprudence” in the interpretation of new law, any question as to the meaning of EU-derived law (ie the EU law preserved by the Bill) “will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.” (My emphasis.)
“This approach maximises legal certainty at the point of departure, but the intention is not to fossilise the past decisions of the CJEU forever. As such, we propose that the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court.”
So cases which help interpret EU-derived legislation will continue to apply for so long as that legislation is preserved domestically; but they can be altered by later rulings of our own Supreme Court, and they can be rendered obsolete (arguably at least) when the EU-derived legislation is amended or repealed and replaced by new domestic legislation.
But what if a decision of the CJEU is reversed or modified in its effect, in Europe, by a later (post-Brexit) decision of the CJEU? Does the earlier ruling continue to apply in our domestic courts willy nilly (ie is it still binding), or will there be a presumption that it continues to apply in so far as it affects domestic EU-derived law (even though it might not still apply to the same law as enacted or having direct effect in the European Union), subject to our own courts’ power to apply, instead, the later decision of the CJEU (not binding, but persuasive)?
In other words, would our domestic courts be required to prefer and give priority to the earlier CJEU decision even though the CJEU itself had updated its view of the same law? Or would that be to “fossilise” the case law “as it exists on the day we leave the EU”?
If not, would the earlier CJEU decision be somehow downgraded, so that it would only have the same status as the decisions of the European Court of Human Rights in Strasbourg, which are persuasive but not binding, on the courts of this country? Or would the status of the earlier decision be a matter entirely for our own domestic courts? I suspect the latter, but I also suspect the courts would be appropriately respectful of the continuing jurisprudence of the CJEU, so that it would be for our “sovereign” parliament to make any major alterations of EU-derived law.
When it comes to legislation, the white paper states that
“where a conflict arises between EU-derived law and new primary legislation passed by Parliament after our exit from the EU, then newer legislation will take precedence over the EU-derived law we have preserved. In this way, the Great Repeal Bill will end the general supremacy of EU law.
If, after exit, a conflict arises between two pre-exit laws, one of which is an EU-derived law and the other not, then the EU-derived law will continue to take precedence over the other pre-exit law. Any other approach would change the law and create uncertainty as to its meaning.
This makes clear the overriding objective, as it were, is preservation of the status quo in relation to EU-derived laws, notwithstanding the severing of our connection to the EU itself. That must make sense, but it will disappoint the Brexiteers who yearn to see a great bonfire of regulations and EU-derived red tape. They will need to be patient.
Finally, a bonus for the Daily Express, which has proved itself a repeat offender when confusing, mischievously or otherwise, the Council of Europe and the European Union, and frequently suggests the European Convention on Human Rights is an “EU directive” and the like:
Though the two will never be the same thing, as they and other tabloids like to suppose, any more than Luxembourg and Strasbourg are the same place, their status in the domestic law of this country will eventually be the same: persuasive, and of indirect effect; not binding, or of direct effect.
[Have I got this right? Let me know on Twitter @maggotlaw ]