Macfadyen Lecture 2018

8 March 2018

“Brexit: A Judicial View”

Ian Forrester, QC, LLD*

[1] Donald Macfadyen and I were born in the same year, went to school in Glasgow, and studied law at the same university. Our early days at the Bar overlapped: we each devilled for the then junior David Edward. Donald’s subsequent career was a model of the classic combination of public service and private professionalism that should make us proud of the Scottish Bar. He served in a number of the most sensitive controversies of the day: the extraordinary appeal following the Lockerbie bombing, the protection of children in Orkney, as well as a number of other legal and civic matters. I knew him best in our early days at the Bar and in his later years. It was an honour to be asked to be the latest in a line of ‘personalities’ charged with delivering this lecture1 in his honour, the first having been that same David Edward.

[2] The invitation came in 2016, in happier and legally more certain times, pre-Brexit. The original idea was to discuss the evolution of links between Scottish law and European law, and speculate about how those links could be deepened and reinforced, and particularly how Scots practitioners could play a part more frequently in the shaping of EU law.2 However, the trustees and I agreed that the sensitive subject of Brexit would be, regrettably, a more worthy topic for this lecture in honour of a man who as advocate and as judge was involved in several of the great causes of the day. Brexit, if it occurs, will represent what one English judge has called a seismic shock, a truly revolutionary change. Scotland has seen its share of great upheavals and controversies. One was the Reformation, which has, I suggest, some lessons to offer us.

[3] In 1560, the Papal Jurisdiction Act abolished the jurisdiction of the Pope in Scotland. A separate Act abolished idolatry and another prohibited the saying of the Mass. However, in many respects, even though the jurisdictional authority of the Pope had been abolished, Scotland did not eliminate all traces of the old religion, far from it.3 The church buildings remained. There was a considerable degree of tolerance, limited purges of the old clergy, and a rather modest degree of social change. The sacking by the Crown of the assets of wealthy religious institutions was more of an English phenomenon. In particular, classical canon law remained part of the law of Scotland, albeit rooted in the civil law of Scotland and not in the authority of the Roman Catholic Church. To quote the venerable Stair’s Institutions:

This pontifical law extended unto all persons and things relating to the Roman church … as orphans, the wills of defuncts, the matter of marriage and divorce. And so deep hath this canon law been rooted, that, even where the Pope’s authority is rejected, yet consideration must be had to these laws, … as containing many equitable and profitable laws, which because of their weighty matter, and their being once received, may indefinitely be retained than rejected. (James Stair, Institutions of the Law of Scotland, Book 1, Title 1, ed. David M. Walker (Edinburgh and Glasgow, 1981) p. 82.)

There were of course problems and controversies. Some things changed. Life muddled through nonetheless.

[4] 450 years after the Reformation, assuming Brexit goes ahead, it is not the case that zealots will burn books on European law, or imprison European law scholars, or burn flags or smash icons on which yellow stars appear against a blue background. Instead, as with the Reformation, in Scotland after Brexit there will be little change in many areas of daily life; but that is not to say there will not be any big changes.

[5] Following the June 2016 referendum, the country’s political leaders were faced with exceedingly difficult choices; political, constitutional, commercial, regulatory and legal, and very many of these remain unresolved.

[6] Tempting though it may be, it is not my intention to say that a Brexit would be a good thing or a bad thing, politically speaking. To quote Sir Geoffrey Vos, Chancellor of the High Court, judges are not paid to decide what is good for the country. They do not deal the legal cards, as he put it. Judges in the UK are observing the ongoing debates and will await outcomes which are, so to speak, judicially actionable. But they can point out problems and questions which are likely to need attention, uncertainties which need to be borne in mind as the negotiations progress.

[7] I propose to consider some practical legal concerns which would be presented by a Brexit.

  1. The first relates to an area where there may not be much change, and where the government appears to hope for as little change as possible – the technical regulation of our daily lives. I will discuss the spirit in which European Union law should be applied judicially in the UK after a Brexit would have occurred.
  2. The second is to record the existence of matters which need to be addressed – and where there will be grave problems if they are not addressed – before a Brexit happens.
  3. The third and last is a plea for moderation and clarity in discourse.

[8] Let me begin by noting where we are today.

[9] Since 1 January 1973, the UK has managed the regulation of much of the country’s affairs in collective cooperation with its European partners.4 The topics of cooperation in regulation are vast and include access to higher education, agriculture, professional qualifications, access to healthcare, sex discrimination, customs, potentially hazardous chemicals, financial services, energy, nuclear safety, national security, terrorist asset freezes, the right to reside, mutual recognition of judgments, food safety, animal welfare, environmental protection, criminal law enforcement, fisheries and data protection.5 The UK is a highly regulated society and I have no expectation that Brexit will make it more casual about workers’ rights, dangerous chemicals, protection of wildlife, equal pay for men and women, child abduction, access to data, competition, motor vehicle design or aviation. So what is going to happen?

[10] Lord Cockfield, the father of the 1992 programme to complete the internal market, used to say that sovereignty was like energy: it could not be destroyed but it could change its shape. The UK has pooled its capacity to regulate with its EU partners. It has exercised its sovereignty in cooperation with a growing number of other European democracies, at first just 8, now 27.

[11] The research, consultation, debate, and decision-making are done collectively, usually involving expert agencies or committees. Independent EU agencies are responsible for regulating pharmaceuticals, food safety, security, animal feed, maritime safety, aviation and many other topics.6 The agencies are located in London (medicines), Alicante (trademarks), Angers (plant varieties), Helsinki (chemical substances), Riga (telecommunications), Parma (food safety), and some twenty further cities across the 28 Member States of the EU.7 The extent of the responsibility of each agency varies but each of them is engaged in enforcement, investigation and other regulatory actions. These agencies employ experts and produce recommendations or opinions. These technical recommendations are then considered as policy and political questions by the Member States who try after debate to reach a common position. The texts will often have been drafted to reconcile different national interests. Thousands of individual problems arise on subjects such as food safety, customs, health, environment, data security, chemical substances, privacy, animal welfare, private international law and the rest. These debates are resolved within the technical committees. They may render an opinion on the basis of which the Commission will propose or adopt action.

[12] UK officials have been exceptionally successful in contributing UK-friendly ideas in the drafting process.8 Sometimes the national interest at stake might not have included the UK, while in other cases the text may have been tweaked precisely to satisfy UK concerns.9 Pursuing consensus is the rule, but in some cases there is a vote. A small number of texts (dozens out of thousands) have been adopted despite UK opposition.

[13] During the debates, it often happens that a state’s scientific representative will plead for his state’s view of the issue.10 A Swedish national expert may favour different environmental or animal welfare standards than a Portuguese expert. Neither is right or wrong, but they are different. Reaching consensus between them has helped the market (for the goods made in accordance with the consensus) to grow to 500 million people. There are scores, maybe hundreds, of technical or advisory committees staffed by national experts. The purpose of these mechanisms is to help form and implement the language of the legislation—making it work in the real world.

[14] Topics have included such things as whether an antibiotic growth promoter is an appropriate feed additive for calves, turkeys and pigs, what subjects a qualified doctor should study, whether phthalates are hazardous to babies who suck soft plastics, or whether a particular pesticide is safe to be put on general sale or should be removed from the shops. As technology has advanced and as technical choices have become more sophisticated, an ever wider and deeper mass of regulation has emerged.11 The Confederation of British Industry (CBI) has estimated that the roles of 34 EU agencies will need to be replicated in the UK to perform for the UK the elaboration of technical regulations parallel to those currently produced under the auspices of EU27.12

[15] European Union law primarily aims at the construction of a functioning common market, a process which involves the reduction or removal of national rules which impede that goal. While most EU law is economic in nature, it is necessarily technical, prescriptive and precise. General principles are insufficient. It is easy to decree that farmers shall give healthy feed to their animals. It is difficult to decide which feed additive is good, bad or uncertain. The same broadly applies to cars, pharmaceuticals, pesticides, plastics, chemicals and fire extinguishers.

[16] European Union law covers the qualifications of the Spanish citizen who works as a doctor in Edinburgh and the Irish pharmacist who dispenses the medicine, as well as the safety and efficacy of the medicine (and the patents covering the active molecule in the medicine as well as those covering the process for making that molecule).

[17] Regulation is an ongoing process. Science and industry keep discovering new techniques and technologies and creating new products. It is not practical to decide each new inclusion on a white list or a black list via a parliamentary vote, still less a vote by 28 parliaments. The answer to the democratic impossibility of parliamentary voting is expert advice, followed by the adoption of secondary legislation.

[18] The goal of these communings is the creation of a competitive market that will favour innovation, risk-taking, decent treatment, and the expansion of choice to consumers through competition, prosperity and security. The process is largely unknown to the public, and has been criticised for being opaque and undemocratic.13

Rendering EU Law into UK Law

[19] The European Communities Act 1972 incorporated into UK law the EU treaties and the law promulgated under them, and charged the UK government with enforcing this law.14 As part of the Brexit process, the Withdrawal Act (‘the Act’) is expected to be the mechanism to achieve national jurisdictional independence. The Act is intended to remove EU law from its current status of primacy over the UK’s domestic law and institutions.15 The Act would thus fill the void that would otherwise be left if the UK were to renounce but not replace that vast body of law, the acquis communautaire, which has come into being since 1957 and into UK law progressively since 197316. Thus the corpus of European law as of the date of repeal would become UK law. This ‘nationalisation’ will include the primary treaties, regulations, directives, and guidance offered by the Commission, and the case law of the European Courts. The total number of texts is maybe as many as 92,000 or more. The BBC has mentioned at least 80,000 distinct pieces of legal text.17

[20] In any event, it is proposed that tens of thousands of EU texts will enter UK law via the Withdrawal Act, like a vast tangle of EU wires being plunged into a bath of electroplating to make their nationality that of the UK. They cover the environment, animal feed, quality of drinking water, data protection, seatbelt anchorage points, power consumption of vacuum cleaners, labelling for bottled water, the conditions under which a person suffering from diabetes may be issued a driver’s license if they suffer hypoglycaemic episodes and many more.18 Often the rule as originally adopted will have been changed, maybe dozens of times, to respond to technical progress. There are thousands of texts because life is complicated and highly regulated.

[21] The UK will have three choices: one, set up a UK mechanism for adopting and enforcing UK standards, which will be stricter or less strict than those in the EU27; two, follow what standards are adopted by the EU27 according to procedures to be adopted case by case; or three, not regulate the topic. (During the referendum campaign there was talk of repealing silly and intrusive regulations, but since the referendum I have not heard of specific candidates for deregulation – there may be some.) There may be fields where the policy of the UK would diverge from the policy of the EU: agriculture is one example; the fisheries are likely to be more difficult.

[22] It may be helpful to remember the reception of Roman law in the six centuries after the death of the Emperor Justinian across what used to be the Roman Empire. Different flavours of Roman law developed, so that there was a Lex Romana Visigothorum in one territory, different in some respects to the law in what we now call Italy or Germany. Roman law was far less detailed and prescriptive. Today, EU law and national laws by contrast are very detailed and technical.

[23] To reconcile the need for good regulation with the political need to escape the reach of the EU, the concept would be to bring the whole intricate mass of EU law into UK law and then, over the years, by correcting, pruning, winnowing and discarding, to arrive at a point where the UK has the legal framework that its political leaders desire. That will involve an immense amount of work by the UK’s civil service, and its legislature and ministers.

[24] I picked the field of technical regulation to show how texts which are technical rather than political are drafted. Now let’s pass to how disputes about their meaning would be handled.

Foreseeable Controversies

[25] As of the date of a Brexit, the process of rule-making and enforcement within these expert entities will not stop, and indeed should not stop, since new dangers will be identified, new products will be proposed, new licensing requirements will emerge and adverse events about existing products will be reported.

[26] To take one example, pharmaceuticals are today subject to successive tests in the laboratory, then on animals, then on healthy human volunteers, then on selected patients in order to demonstrate safety and efficacy.19 Once approved, the performance of the medicine is regularly monitored and apparent problems (adverse health events) reported, for corrective action to be taken.20 Animal feed in line with the advice of the Scientific Committee on Animal Nutrition is subject to comparable but lighter rules, as are food additives and cosmetics.21 The basic legislation will have set up a process for deciding technical controversies, and that process is ongoing. The need for a process to approve or disapprove products or standards is of obvious importance. The decisions taken can have serious economic, human and environmental consequences.

[27] It is very common for very divergent technical views to be advanced in intense lobbying by trade associations, NGOs, governments, and individual scientists. Amateur gliding pilots are actively involved in discussing airspace limitations. Football’s executive bodies negotiate the training of young professional players. The exchanges are necessary to satisfy technical, political and popular concerns. The outcome of these exchanges will almost never be wholly ‘good’ or wholly ‘bad’. If ‘public health’ is favoured ‘innovation’ may suffer. If farmers will be relieved, advocates for the environment may be dismayed. ‘Consumer safety’ and ‘price’ may be opposing concerns. These comments are not meant to caricature, but to record in shorthand form the sensitivity of the technical choices. So controversy as to the outcome is very likely.

The Judicial Function

[28] These EU regulations set forth procedures, deadlines, governing criteria and standards, dangers, precautions, how to handle freshly identified problems and adverse health events. And of course they lead to the adoption of measures which can be judicially challenged, either directly by those who are ‘directly and individually’ affected, or indirectly by a challenge before a national court at the instance of a trader affected by the EU rule.22 That presents a set of familiar litigious problems which are addressed under the current regime.

[29] EU regulatory agency activities will continue in the EU27. These EU agencies’ decisions will of course be subject to judicial review in Luxembourg, either by appeal to the General Court or by reference from a national court to the Court of Justice. Suppose that a health scare has arisen about an additive, and the relevant EU scientific committee decides either to ban it or to approve it under limited conditions. What happens if the UK experts and the EU experts take different views? And during the period after Brexit, but before the establishment of a UK agency or committee of experts, what happens if the EU27 adopts a new standard? Two current or near-future issues can serve as examples of problems after a Brexit: shall UK farmers be free to use the herbicide glyphosate? And what safety standards shall apply to driverless cars in the UK?

[30] The right of a UK trader to challenge the new rule in Luxembourg on the grounds of ‘direct and individual concern’ will still be available, but that is a very narrow test. Most litigants have to raise such concerns before a national EU judge and hope for a reference.

[31] As you will see, EU norms will be applicable in the UK even if rebranded as UK national law. This ‘nationalisation’ would respond to the sovereignty concern, in the sense that ‘we would have regained our independence’. But every regulatory text will present ambiguities, some of them unforeseen, some of them arising from the deliberate making of a choice not to decide a particular question. Hundreds of disputes about interpretation are in progress every day. Is the medicine efficacious? Is the work of a cashier (mainly female) equivalent to that of a shelf stacker (mainly male)? Is the bathroom tile to be classified for customs purposes as a filled plastic or an artificial stone? Is the curriculum of a law course in one member state equivalent to the norm? Should the herbicide have been prohibited or permitted? Was the decision on its future use properly reasoned? Was the evidence about the feed additive fairly presented in the Regulation which prohibited it?

[32] When deciding such controversies in court, any judge will be guided by the recitals and the other words of the regulation or directive. Today, the UK judge – like any other national judge – will also have regard to the purpose of the measure, the relevance (or not) of the precautionary principle, the importance of market integration and, perhaps, the Charter of Fundamental Rights.23 In a market of 28 countries and 500 million people, consistency is an obvious merit. If the same product when imported from China is subject to a 5% customs duty in Newcastle and a 7% duty in Bordeaux, there will be a flood of imports into Newcastle. If the herbicide cannot be used on crops in the EU, all food processors and shops will avoid buying crops made using the herbicide.

Judicial Review in the UK after a Brexit

[33] But consider the Scottish judge confronted with a textual dispute after a Brexit: What weight should be ascribed to consistency with the rules prevailing in the EU? Will such consistency be of high importance or of low importance? Will the findings of the EU Scientific Committee on Animal Nutrition be treated as authoritative or merely interesting? What technical priorities should apply in these fields? Will a high level of protection be a priority for consumers, female workers, animals, and the environment?

[34] British judges could be expected to pursue consistency with the acquis communautaire, so as to make trade easier. Alternatively, consistency with the EU27 could be given a low priority because of the political importance of ‘regaining our independence’ so that judges are told to have no regard to ‘European norms’. Or again, the subject could vary sector by sector: consistency with EU27 on health and safety and customs, but an ‘independent’ line on mutual recognition of qualifications or data protection.

[35] EU law relies on principles of interpretation, some quite abstract, to achieve something like ‘fairness’ or ‘sound government’. The high general principles of proportionality, legitimate expectations, sound administration, due process, non-discrimination, and so on, each might affect how to address a controversy. The Charter of Fundamental Rights was an attempt to codify certain basic principles of fair play into EU law. Its future after Brexit is rather entangled.

[36] The Charter is not to be part of UK domestic law, but it is of course an ongoing part of EU law that Brits can refer to in UK courts when interpreting what is to be called ‘retained EU law’, (the directives, the regulations and other directly effective bits of EU law). So for the rules which existed prior to Brexit day, the Charter (and other general principles) can be relied on. But there will be no right of action for failure to comply with general principles of EU law. Indeed, cl. 3(2) says that after Brexit ‘no court may decide that action is unlawful because it is incompatible with general principles of EU law’.

[37] General doctrines and the Charter can be looked at to help interpret retained EU law, but not as means of annulling or challenging errors or excess by the administration. This is to help restore the parliamentary sovereignty that the EU had encroached upon. So old retained EU law remains supreme, yet the traditional means of challenging abuses in applying it seem to have disappeared. (There is a provision that a challenge would be valid if such challenge was provided for in ‘regulations made by a Minister of the Crown’.)

[38] How to reconcile parliamentary sovereignty with the need to accord to citizens the opportunity to vindicate rights created by EU law? You can see the tensions confronting the drafters. We must escape the encroachment on UK sovereignty. We cannot not regulate the areas of daily life covered by EU law today. We must shed any vague general principles of EU law which can be used abusively or excessively. But we don’t want to deprive citizens of the right to challenge measures whose adoption or application was erroneous. But we don’t want them to use EU law to correct errors in applying EU law. This touches upon equality of pay, the environment, health and safety, free movement, and many other aspects of daily life. It might seem that the established way to achieve judicial oversight would have been diminished.

[39] I am not an expert in UK constitutional questions, and these are quite basic reactions to the extraordinary complexity of the doctrines: the ultimate shape of the Act may be different. I predict that there will be immense difficulty in deciding these questions.

[40] Here are a few conclusions about how to approach these likely controversies:

[41] My next point is a much less subtle one. Geographic proximity requires it. The UK has pooled its sovereignty for 44 years and has in the process opened up for its citizens and businesses a huge market by having collectively drafted rules on hundreds of matters. Withdrawing from these rules, annulling these rules, and not replacing them would trigger a number of misfortunes in matters small and large. The rules touch crucial areas of public policy which cannot be arranged informally. They depend for their effectiveness on close cooperation. But they were conceived, drafted, and governed within an EU framework.

[42] If Brexit is to go ahead, a number of very important matters will need to be settled first. I will mention a few topics. The whole list is much longer.

Crime, Policing, and Security