More Brexit Confusion: UK Judges Can Use New ECJ Precedents Post Brexit

One of the big justifications for Brexit was for the UK to take back its national sovereignity and get out from under the supposedly oppressive thumb of the European Court of Justice.

Reader vlade sent us a not-very-clear BBC story that still manages (despite a headline obscuring the issue) to highlight yet another way Brexit appears unlikely to live up to its billing.

The Great Repeal gives judges the option of using European court rulings as precedent post Brexit. I am not making that up. From the BBC, based on an interview with the UK’s Supreme Court president, Lord Neuberger:

When the UK leaves the EU, the ECJ will continue to develop law on everything from consumer rights to discrimination – from things like compensation for airline passengers to transgender rights.

The government’s Repeal Bill states that UK courts do not have to pay any heed to decisions of the ECJ after the UK has left the EU – but any court “may do so if it considers it appropriate”.

Bear in mind that the UK accepts the proposition that pre-Brexit ECJ decisions will retain their status as precedents post Brexit:

The EU’s position document that deals with governance issues around the withdrawal agreement says all Court of Justice rulings would be enforceable in the UK.

The government has said its repeal Bill – also known as the European Union (Withdrawal) Bill – will ensure that historic judgements of the ECJ will be given the same binding or precedent status in our courts as decisions of our own Supreme Court.

These judgments extend some rights in areas including the calculation of holiday pay for UK workers.

The Supreme Court rarely departs from one of its own decisions and so historic rulings of the ECJ will be binding upon it in almost all situations.

But letting UK judges opt to look to new ECJ rulings post Brexit tis politically problematic, to put it politely. The article points out earlier on that:

Prime Minister Theresa May has insisted the ECJ should have no jurisdiction over the UK after Britain leaves the EU.

I am sticking my neck out a bit in the hope that readers who know something about legal practice in the UK and Continent can pipe up. European countries ex ones like Cyprus that choose to rely on English law operate on a civil law system. A key difference is that precedents are given less importance than in a common law system like the one in the US and UK. It would be helpful for readers to indicate whether ECJ rulings tend to be applied narrowly or more broadly in subsequent lower court cases in Europe.

The sticky part would seem to be that if one UK judge decides to use an ECJ ruling to support his verdict, then the ECJ decision he relied on becomes a UK precedent if it was important to the basis for his ruling.

Lord Neuberger does not like the ambiguity. Quoting the BBC story:

“If the UK parliament says we should take into account decisions of the ECJ then we will do so.

“If it says we shouldn’t then we won’t. Basically we will do what the statute says.”

And what the Government spokesperson is trying to fob off on the media is apparently not what the Repeal Bill actually says:

A government statement said: “We have been clear that as we leave the EU, the direct jurisdiction of the European Court of Justice in the UK must come to an end.

“However, we want to provide maximum certainty so the Repeal Bill will ensure that for future cases, UK courts continue to interpret EU-derived law using the ECJ’s case law, as it exists on the day we leave the EU.”

Given how much is up in the air about Brexit, I wonder if this issue will get the attention it warrants. But this example suggest the Repeal Bill will be full of nasty inconsistencies that won’t get ironed out due to the press of time.

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  1. Paul Jonker-Hoffrén

    I think from the British perspective, this is indeed problematic, especially politically. But what the British judges would do is common practice in the Nordic countries: judges look at solutions to similar problems in other countries. Mostly this refers to the other Nordic countries, especially in Sweden, Finland and Norway it works this way. But sometimes also similar issues from Germany or the Netherlands are looked at.

    The main reason is of course that the legal trends and content of the law in many cases are quite close. So it is a kind of implicit, but possibly deliberate, harmonization. As such, I don’t think this attitude of the British towards post-Brexit precedents is misguided. Politically of course it is a totally different issue.

    1. vlade

      This would have been the reasonable answer. What we have seen so far pretty indicates that any detection of reasonablness rules it out as far as most vocal Brexiters are concerned.

  2. VK

    If I understand those riding the principle of sovereignty correctly, they oppose the possibilty of nixing laws invoked by act of Parliament by way of the ECJ afterwards?
    If that understanding is correct, then to accept and incorporate laws already approved in EU should be no problem, from case to case where they don’t conflict with standing regulations.

    It seems to be mainly a political problem at the moment, to satisfy a very much worked up base.

    It might be more of a general problem, if the legal consequences drawn from that same source would differ so much in Britain lateron, that there would be collisions, which would have again to be settled in courts.

    1. jabawocky

      The judges oppose having to decide for themselves which case law to apply, EU or UK (including EU up until the point of departure), without clear parliamentary guidance on when to apply which. As far as I can see the government would like to mirror updates to UK law from the ECJ where this is necessary to ensure continuity in regulatory equivalence (eg to meet the terms of a free trade agreement). The alternative is that parliament has to vote on each ECJ update into UK law, or allocate this job to an entity which reports to parliament, and advises judges. Each option comes with its own problems.

  3. Colonel Smithers

    Thank you to Yves and Vlade.

    Prior to the incorporation of the European Convention on Human Rights into UK law in Tony Blair’s first term, especially in the 1990s as the European Court and the Council of Europe became much more active, British judges often used the ECHR as justification, based on the UK’s foundation and ratification in the 1950s and the UK permitting individuals to access the court from 1966 onwards, and its case law as examples, if not precedent.

    The UK looking at the ECJ would be nothing new. Many former British colonies, mainly the smaller ones and / or the ones who use the Privy Council as the final arbiter, e.g. Mauritius, use UK law, including case law, in their domestic law / legal systems. Mauritius has a dual legal system, based on the Code Napoleon and English Common law. This can be complicated and requires study in both mother countries, but it does permit some flexibility, especially such external precedents.

    1. Colonel Smithers

      I should have added that the domestic politics / optics will be the more difficult to negotiate.

      As the UK MSM continues its obsession with Trump and Putin(‘s holiday), ignoring some bad economic statistics out in the past week, perhaps Treeza Mayhem can use the obsession, if not insouciance, to her advantage.

  4. JTMcPhee

    Memory is fading, but what I recall from my education and practice in the law is that the UK and the US are “common law” areas, where “the law grows” based on decisions and rulings of judges. For example, the whole doctrine of “enterprise liability,” where harms resulting from an activity or product common to an entire business sector are to be made good by the entire full set of corporate participants in the market — like the aluminum wiring and insulation failures that caused the Beverly Hills Supper Club fire in 1977. Not possible factually to prove which company’s particular wire caused the fire, but all participated in marketing and lobbying.

    And in the arcane realms of “choice of law” and “conflict of laws,” and related doctrinal areas, especially when it comes to the “commercial litigation” that makes up the vast bulk of judicial work, there’s frequent recourse to the body of law of other jurisdictions and sovereignties to undergird court rulings. So this is hardly an honest hair-on-fire issue.

  5. armoured

    I think Paul’s point above is the most apt – and in fact to some degree already occurs and has for some time in most common law countries – case law and precedent can make use of court precedent in other countries and systems. It does not have to the way it currently does with ECJ decisions.
    Given the considerable overlap in various legal norms, treaties, conventions, and indeed the incorporation of EU-derived law by means of the Brexit bill, I don’t think this should be controversial at all (except politically) – the courts can draw on case law where relevant and helpful with respect to a legal issue of interpretation. If they’re not required to, fine – although a higher court may decide that the ECJ decision is relevant (if, for example, an opposing lawyer makes a compelling argument and reference as to why it should be considered).
    There are lots of areas where Brexit looks like a joke, I just don’t think this is one of them.

    1. Yves Smith Post author

      This is inconsistent with the top reason voters gave for backing Brexit won, per the Lord Ashcroft polls, which was to regain national sovereignity. The UK having to submit to EU regulations and ECJ decisions was depicted as an affront to the UK, as well as harmful in ways that were never specified.

      The US is a common law country and we never use precedent from anywhere else. But the US is a much bigger economy. The smaller common law countries look to either the US or English law, not to any civil law countries for precedent, at least per Wikipedia:

      Of course, it does not acknowledge the current role the ECJ has relative to UK precedent.

      What I found troubling, and you don’t appear to acknowledge it, is the same issue that bothered Lord Neuberger, the lack of clear guidance as to whether or not judges should look to the ECJ. He appears to be deeply uncomfortable with having it be at the option of individual judges. I would assume there are good reasons for his discomfort, and I don’t think anyone on this thread has considered seriously what those might be. My best guess is he is thinking of the way US and UK common law have diverged over time and are now distinct. He seems to want clearer guidance from Parliament as to its stance re keeping the UK in line with the EU or tolerating or even encouraging divergence.

      Having to continue to respect other nation’s laws is not consistent with what seems to be at the root of the Brexit vote: deep denial regarding Britain’s state in the world as a small open economy.

      The fact that the UK couldn’t push the EU around as much as it liked, despite pushing the EU around aplenty, was depicted as a bad deal.

      I’m not saying that this isn’t a practical approach. What I am saying is that if any hard core Brexiteers take notice, this will be a big issue.

        1. Yves Smith Post author

          That is not what either article says. From the first:

          Never before had the Supreme Court’s majority cited a foreign legal precedent in such a big case.

          And the second:

          Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial.

          And although I don’t often read Supreme Court cases, I do read important lower and appellate court cases on a regular basis. I must have read hundreds of cases by now. I’ve never seen a foreign case mentioned, evah.

          Two Supreme Court cases where the court is looking for a justification to change prior rulings in a meaningful way is not “often”. And the “not controversial” per the Cato comment = the US precedents were more than adequate to justify the decision, bringing in foreign rulings was just a judicial flourish.

          I did overstate by saying “never” but in practical terms, the US does not rely on foreign precedents.

      1. begob

        In lower courts in the EU there is a reference procedure in disputes over the interpretation or validity of EU law, ultimately leading to a binding decision by the ECJ. It’s a way for judges to converge in their thinking in a preliminary way, rather than discover what it’s all about on appeal.

        Neuberger seems concerned about a jumble of inconsistent applications of ECJ jurisprudence, so a similar internal procedure for the UK may be necessary. The decisions on interpretation would be made by a British court, without interference by the ECJ, which I guess gives enough cover on the political side.

        1. Yves Smith Post author

          Aha, that is helpful. Can you unpack a bit more how the “reference procedure” works?

          In the US, and I would assume the UK, we often have lower courts making conflicting rulings on fact sets and matters of law that are similar enough as to create uncertainty as to what is “good law” and these disagreements hopefully are eventually resolved by higher courts. Does the EU have a different process for dealing with (or reducing the incidence of) inconsistent-seeming decisions?

  6. PlutoniumKun

    I’m not a lawyer, but my take on this is that its not such a big deal. British (and other Common Law jurisdictions) are obsessed with precedents and its not uncommon for precedents in other jurisdictions, including the US, to be raised during cases, although usually just as a matter of interest – they would rarely if ever be quoted in a decision. Given how deeply influential ECJ decisions have been in the UK it would be very hard to escape their influence even after a hard Brexit.

    Somewhat tongue in cheek, a friend once offered his view that there were three main schools of legal thought in Europe:

    1. Northern European Civil Law: Laws tend to be short, to the point, and they really, really mean what they say are intended to be enforced under all circumstances.

    2. Southern European Civil Law: Lots and lots of laws covering everything. Every now and again one or two of them will be enforced, but not if its a nice day out.

    3. Common Law (UK, Ireland, Malta): Yeah, lets have lots of laws, but whats much more important is how big the argument will be over the precise parsing of the meaning of subsection 182B(a)(iii) in the context of Wilberforce vs Scunthorpe Haberdasheries (1832) and how much the barristers daily rate will be.

    The European Courts are dominated by judges who come from jurisdiction 1, and this creates a real problem when courts elsewhere find out that Directives really, really mean what they say. Sometimes negotiators from the UK and Ireland sometimes never quite understood this when agreeing to some Directives (I’ve heard it suggested tongue in cheek that the Irish and British negotiators must have been out on a bender the night before, or they’d never have agreed to the Aarhus Convention, which gives enormously expanded rights to the public).

    There is no doubt that in Common Law jurisdictions there has been a process whereby Irish and British courts have become more aware of how the ECJ works, and their decisions have tended to reflect this. It has tended to be a top down process. I’ve no experience in the UK, but in Ireland its common for lower courts to take an old style Irish ‘ah sure we know it says that but we all know they didn’t really mean it’ approach, while the higher courts take the more ECJ line when dealing with issues concerning EU Directives. Both Ireland and the UK have lost in the ECJ over issues of not precisely translating Directives into national law.

    Its worth, btw, reading some EU Directives. Its common for eurosceptics to accuse the EU of being bureacratic, but they are frequently models of brevity and precision.

    Incidentally, on the topic of Brexit, Fintan O’Toole of the Irish Times has an interesting take on the newly aggressive approach of the Irish government. He argues that Brexiteers have accidentally handed a veto to the Irish government over all aspects of Brexit, and the new government intends to use it.

    1. Darn

      O’Toole has often been wrong such as criticising a pamphlet written by Brexiter Michael Gove, with O’Toole thinking the Good Friday Agreement requires the UK to be party to the European Convention on Human Rights, when what is required is for the NI Assembly to legislate in compliance with the Convention (and this is on a statutory basis, which would continue even if the UK left the Convention). Or when he says Brexit would be “a scream of incoherent rage” but that whether Scottish independence would work would “depend”. The harm from leaving a single market (EU or UK) are the same in both cases, except 6% of the UK’s GDP isn’t a net fiscal transfer from Europe!

      Varadkar was wrong, and hopefully knew it and was just posturing to pressurise the ignorant Brexiters, when he suggested making the Irish Sea the border to avoid having one in Ireland. Wrong because the Republic’s trade with NI is small, but trade with GB and continental Europe is massive, and it’s over the Irish Sea!

      Of course, the Brexiters need to avoid a hard Brexit to prevent electoral doom, but that doesn’t give the Republic a veto at all. The RoI has every interest in preventing the hard Brexit itself, to avoid its own economic crisis. That means making it easier for the UK to get a transitional deal, rather than using the veto to get a better one. The clock is ticking for both the UK and RoI.

    2. vlade

      He assumes that for a transitional period, the A50 timeline has to be extended.

      That is not true – the agreement reached by April 19 may well be “Let’s go EEA for next 5 years, with some bells and whistles, and continue negotiating in meanwhile”.

      There’s no specification in A50 how the agreement must look like except that the leaving member may not be an EU memeber anymore w/o agreement of all remaining parties – which EEA or similar would fit.

      1. Darn

        Yes, the transitional deal just has to be worked out by the time A50 kicks in. His point is Ireland can prevent that happening if it wants, to threaten a hard Brexit. My point is it would harm both countries which makes the veto an empty threat.

        Varadkar had already suggested the UK and EU joining a common customs area after Brexit, and the UK re-entering EFTA, by the time O’Toole’s article was published. (I dunno if that link will work, google the headline Varadkar: UK could join special customs union after Brexit)

  7. Jim A

    The government’s Repeal Bill states that UK courts do not have to pay any heed to decisions of the ECJ after the UK has left the EU – but any court “may do so if it considers it appropriate”.

    Certainly there is a huge difference between binding precedent, like when the US Supreme Court makes a ruling and inferior courts are obliged to follow it and persuasive precedent which is more like saying “This court in a completely different jurisdiction looked at the same problem and this was their answer.” It really isn’t that different from citing a law review article in support of your position with the added benefit that having the same rule in different jurisdictions tends to streamline things. This seems to fall firmly into the latter category and just isn’t that significant IMHO.

    1. vlade

      I’m not sure whether it’s really going to be only the “persuasive precedent”. I believe that the pre D-day precedents will be binding (as they are now – if they stopped being binding post D-day, it would be a right mess..). The problem is that there’s no clear intention on whether the further ones should or should not be binding or persuasive only.

      And, where the UK will want to replicate the EU law to ease trading etc., it may not be binding technically, but practically ignoring it will be very costly – imagine a ruling of ECJ on some regulation, which would stay identical in the UK and the EU.

      If ECJ ruled one way, and the UK another way, that would pretty much immediately invalidate any Mutual Recognition Agreements for the good, unless your production would split.

      Basically, under MRA you agree, for products exported to that particular destination, to be in accordance with the destinations’ rules and that your conformity regulatory bodies will enforce that. Which drives regulatory convergence, as there’s little point in having to build for 10 different regulatory environments.

  8. divadab

    I’m not a lawyer but am aware of jurisdictions that have mixed Common Law and Civil Code regimes. Both are in North America – Louisana and Quebec are both Napoleonic Code (based on Roman Corpus Juris Civilis) jurisdictions operating within a common law national framework.

    A Lawyer wishing to practise in Quebec alone need only specialize in Civil law – a three year degree. An additional year of law school is necessary to learn Common law and be able to practise nationally, or in other Provinces.

    These systems have worked this way for over 150 years without insurmountable problems. The posturing on this issue in the UK appears to me to be purely political.

    Incidentally, US (and Canadian) common law already refers to foreign precedents. An example from tax law is the famous Duke of Westminster case which effectively defines the difference between tax avoidance (legal) v. tax evasion (illegal), and which is precedent in both the US and Canada. Here is a relevent passage from the judgement:

    “Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow tax-payers may be of his ingenuity, he cannot be compelled to pay an increased tax.”.

    1. Mucho

      There are a lot of mixed legal systems. On the continent, the paradigmatic mixed system is Scotland, which has mix of common and civil law influences.

      1. divadab

        Yup – down to criminal law – Scots have a third possible verdict – “not proven” – which is not the same as not guilty!

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