Panel Discussion of Judicial Power and Brexit
On 21 July 2016, Policy Exchange’s Judicial Power Project hosted a panel discussion on Brexit and Judicial Power. Key issues addressed included: what Brexit means for judicial power in the UK constitution, the role of Parliament and the courts in triggering Article 50 of the Lisbon treaty, the record of the Court of Justice of the European Union (CJEU) and the implications of Brexit for how British judges might act in the future. Chaired by Lord Igor Judge, former Lord Chief Justice of England and Wales, the panellists were:
- Dr Gunnar Beck, 1 Essex Court, former advisor to the European Scrutiny Committee 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.
Copies of the panellists’ remarks are available here and below. Four main themes emerged from the discussion: Article 50; the record of the CJEU; the constitutional significance of Brexit; and Brexit, lawyers and academics.
Lord Judge introduced the Panel, describing the referendum result as creating an “unparalleled constitutional situation”. He described Brexit as probably the most important constitutional event, as well as the most significant exercise of the prerogative, since Neville Chamberlain announced to the world that Britain was at war with Germany. He noted that there had been no parliamentary consent granted then – and if there had been a vote it may not have passed. But he recognised that the constitutional situation has moved on.
In terms of Article 50 of the Lisbon Treaty and the question of what role Parliament and judges ought to play, Lord Judge posited that there is a political question and a constitutional question and depending on which question you ask you might get a different answer.
Richard Ekins drew on comments from his paper on Brexit and Judicial Power. With respect to Article 50, he pointed out that the European Communities Act 1972 (ECA) takes for granted the existence of the prerogative. He noted that current litigation before the courts calling for the involvement of parliament in the process and challenging the proposed exercise of the prerogative may be arguable, but the courts should reject these arguments and decline to interfere.
Carol Harlow stated her firm belief in the political constitution and affirmed the position taken by Sir Stephen Lawsthat while it would be legal for the government to rely on the prerogative power the exercise Art 50, it would be politically naïve to do so. She expressed a further hope that the courts will exercise restraint and not arrogate to themselves the power of defining the relationship with government.
Record of the Court of Justice of the European Union (CJEU)
Gunnar Beck addressed the record of the CJEU in relation to Brexit. He emphasised that the CJEU is not an impartial arbiter between the interests of member states and the EU, but adopts an approach that favours integration regardless of the limited objects of the rules or provisions at issue in a given case. Beck noted that in theory the CJEU is bound by the general laws of treaty interpretation set out in the Vienna Convention on the Laws of Treaties. But he pointed out that in practice the CJEU departs from both the letter and the spirit of the Vienna Convention and is more willing than other courts to give priority to purposive criteria over linguistic criteria (i.e., the text of the treaties themselves). Beck suggested that the CJEU’s approach to treaty interpretation, in adopting an integrationist approach and in interpreting treaties as living rather than historical instruments, was a contributing factor to Brexit. Professor Ekins echoed the sentiment that judicial overreach, and particularly the approach adopted by the CJEU, was partial cause of Brexit.
Beck also pointed to an accountability deficit, highlighting that the CJEU operates in a legal environment where it is effectively impossible to challenge its decisions. Judgments can only be reversed by the court itself or by unanimous treaty amendment by member states, so it is as difficult to reverse a judgment of the CJEU as it is to amend the existing treaties.
Beck recognised further issues that might arise in relation to Brexit negotiations. In terms of a possible judicial role in relation to challenging the exercise of Art 50, Beck noted that the wording of Art 50 is comparatively clear and there would be limited scope for the CJEU to prevent the UK from choosing when to trigger the provision. The question that remains is whether a notification to withdraw given under Art 50 can later be reversed. The provision is silent on this point, but Beck recognised that this is primarily a political question. However, he noted that while the UK remains a member of the EU it remains bound by the CJEU’s interpretation of the Treaties.
On the question of whether domestic legislation based on EU law will be retained after Brexit, Beck acknowledged that this will ultimately be a question for Parliament. UK courts have internalised principles and aspects of the CJEU’s approach, but over time UK legislation will build on and supersede remaining EU legislation.
Beck points to the possible role of the CJEU in dispute settlements under any UK-EU trade deal. Whilst a separate tribunal or court could be established to resolve such disputes, if the UK retains access to the single market then it is likely that any such body will be required to follow the case law of the CJEU in relation to single market access and legislation. Further, even if the UK leaves the EU, it remains a party to the ECHR and subject to the case law of the ECtHR.
In Harlow’s view, the approach of the CJEU certainly contributed to Brexit. The CJEU has the last word on the interpretation of EU law and its operation led to the idea that national sovereignty has been infringed. She pointed to a number of reasons for this, which can be traced back to the operation of the court, including: the primacy rule, meaning that EU law takes precedence over national law including the national constitution; the principle that domestic law can be disapplied (see the decision in Factortame); and the requirement that national legislation should be interpreted where possible to be compatible with EU law.
Harlow further observed that the CJEU is an unusually powerful court with a policy-making capacity comparable only to the US Supreme Court. It has taken an active role in promoting EU integration. She noted it is also difficult to erase the jurisprudence of the court through political action, pointing to the push back by the British government after Factortame. Further, the court is subject to a very low level of accountability, with no possibility of appeal.
Constitutional Significance of Brexit
Ekins reflected that membership of the EU and the incorporation of EU law has influenced how British judges and lawyers think and that withdrawal from the EU will not immediately change this dynamic. He also warned of the need to pay attention to the way judges approach the transition out of the EU, cautioning that whilst Brexit represents a welcome reassertion of the sovereignty of Parliament it might also lead to unintended consequences in that it may encourage domestic judges to overreach.
Reflecting on what Brexit might mean for judicial power in the UK, Harlow predicted that the ECA was unlikely to be repealed until a late stage of the Brexit negotiations and there was therefore scope for continued impact on UK law over this period. She recognised that Brexit will create a great deal of hard work for the judiciary and will raise difficult questions in relation to devolved governments. Harlow recommended that, post-Brexit, Parliament consider a statutory amendment directing UK courts to take into account or consider relevant case law of the CJEU, the ECtHR and superior commonwealth common law courts.
Brexit, Lawyers and Academics
The final panellist to speak was Simon Lee. He commented that we are in a “high constitutional moment”. Noting the responses of academic lawyers and bloggers who had voted to remain, he suggested that the point for academics is to try and mitigate the disaster – if you think it is a disaster. He focused on the rhetoric surrounding the referendum and its result. He stated that we are in a debate or dialogue and that it is important to attend to the detail of language and its relationship to constitutional culture. He highlighted the important role for academics in this context, particularly through teaching.
A video of the event is also available to view: