Unfinished business

So-called “sausage wars”. The future of Northern Ireland. An uncertain outlook for financial services, the performing arts and many others. With Brexit “done”, what are the prospects for UK-EU relations? And, in particular, the body of law that falls to be applied relating to future trade?

Someone with more of a finger on the legal pulse than most is Ian Forrester QC, until January 2020 the British judge on the General Court of the European Union. Yet another Scot who has made his name on the international stage, Forrester, who turned 75 last year, is not ready yet for a quiet retirement.

Raised and educated in Glasgow, Forrester first broadened his horizons with a masters at Tulane University, New Orleans, writing a thesis on trade secrets, followed by a spell with Davis Polk & Wardwell in New York. After devilling back in Scotland to David Edward – himself a future judge at the EU Court of Justice – he was admitted as advocate before choosing to practise in Brussels as the UK was preparing to join the then European Economic Community. Setting up his own practice with a friend in 1980, he became involved in celebrated cases such as Bosman (freedom of professional footballers) and Microsoft (abuse of dominant position), until the call from the Foreign Office that he was to be nominated for the General Court.

Contrasting traditions

With a caseload dealing with contested decisions of EU institutions on subjects from IP rights to asset freezing to state aid, as well as staff issues such as pension rights and harassment, Forrester found it a “happy and fascinating job” which exposed him to the widely differing approaches of the many legal traditions represented on the court – not least the British practice of judges testing counsel’s arguments during hearings.

“The tradition in civil law countries, notably France, is that oral debate may give the wrong impression that the judge has already made up their mind, and if the judge puts a lot of questions to counsel, that means the goose is cooked,” he explains. One fairly typical exchange – to Forrester – was described afterwards as of “quite spectacular intensity” by an East European colleague, who added: “It’s part of your tradition, but if I did that in my Supreme Court from the bench I would be the object of judicial discipline.”

He learned also that whereas British judges, though careful about overruling a government decision or policy, will have no qualms about doing so in an appropriate case, others may be much more cautious. Perpetual uncertainties included what weight to give to precedent, in a court that has no rule of stare decisis yet is extremely respectful of what it has done before; how to ensure consistency of chamber decisions, when there are maybe 2,000 cases coming through each year; deference to the public authority’s fact-finding; and simply knowing the background facts. “Judges from five countries have to reach a single unanimous judgment – that is a really interesting challenge. It was a huge privilege to have spent five years in that atmosphere.”

Foreseeable problems

Forrester’s tenure may have come to an end with Brexit, but contentious legal issues certainly have not. Does anything about the current state of play surprise him? His reply might best be written: “I. Told. You. So.” He continues: “In the speeches which we were encouraged by the court to make, we all said that Brexit is not going to be achievable without very careful consideration, and ought not to be done until a number of questions have been settled. And if the negotiations don’t address these questions there is going to be perpetual squabbling, difficulty and loss of economic opportunity as well as lots of frayed tempers. Those sad consequences have materialised.”

Although some may have expected Brexit to be a one-off occasion, “I and a lot of other people said it’s going to be a long drawn-out process punctuated by crises as particular unresolved problem areas come up, and that’s how it’s turning out.”

Some of the controversies “may sound trivial as an object of dispute, but it goes back to the confusion between regulation and sovereignty. Sovereignty involves the capacity to take a decision as a sovereign state; regulation can be, and commonly is, engaged in jointly, communally, and the EU has for 50 years been based on that notion of pooling sovereignty. Now the UK is invoking the capacity to regulate and the dignity of having sovereignty as excluding the possibility of parallel regulation” – even though while a member it worked with the other 27 to draft rules that suited everyone.

“There is nothing inconsistent, I would say, with achieving the political goal of Brexit, and deciding that the rules currently in force are valid and attractive and useful, and should stay unaltered. But by making a merit out of divergence the UK is guaranteeing for some years to come a succession of Brexit arguments.”

The judges’ role

Problems are likely to come before the courts, and UK judges have for some time been calling for guidance. How, for example, should they treat a future CJEU decision on a text which is still reflected in UK law? “The Lord Chief Justice repeatedly said that that question should be addressed and the judges be given a steer, but they weren’t. Discrepancies will occur and more and more questions are going to arise in future – to what extent are UK judges to be on their own making decisions about how European law adopted into Scots/English/UK law should evolve – in parallel with or different to European law? Those obvious questions still lack a clear answer. It is difficult to say how EU law will be applied in the UK.

“In five years’ time I would guess that there will have evolved a set of answers, probably judge made as opposed to legislatively prescribed, but it won’t be quick I don’t think.”

As for the new provision that certain courts need not be bound by EU precedent, Forrester does not regard it as realistic to expect judges to apply it without clear legislative indication relating to particular rules. “It’s inviting judges to ‘show courage’ in departing from European standards. I don’t see the political merit in that and I see the possibility of considerable and continuous confusion.”

Further outlook

Has Brexit changed the way the EU is run? “That’s an enormous question,” Forrester replies.

On the one hand the controversies surrounding certain democratically elected governments in Eastern Europe whose policies conflict with democratic values, present big challenges today: for example, the court has to decide how to handle references from two judges whose appointment has been held unlawful in terms of democracy and judicial independence.

“That’s part of my answer. Another part is that the immense difficulties Brexit has created for the UK mean that the 27 can see how many problems can arise, and I guess to that extent the pains of Brexit must constitute a significant cooling effect on the ardour of those who would wish to achieve a departure by their member state from the EU.”

Forrester himself remains active on the scene. Though precluded from appearing before the court for three years, “I’m free to advise on EU law and I’m therefore resurrecting as a member of the bar and looking forward to doing some arbitrations, advising on EU law questions and maybe being in some other capacities useful in the context of Brexit and its consequences for Scots law and the law of the UK.”

How are Britain and the British regarded where he lives and works? “The court and all the officials I have met regard British citizens as the victims of Brexit and kind of sympathise. I see my children, all of our descendants as being even bigger victims because their future opportunities have been sacrificed in order to deliver the political aspiration of separating us from the EU in a manner which makes a merit of difference. But I hear commentators, journalists, diplomats, talking about the UK’s difficult relationship with the EU, in particular associated with the Northern Ireland Protocol. There is a sense that the UK signed and committed itself to something the terms of which were pretty clear, and which are now being denied, rejected, wriggled around, and that causes damage to the level of trust, confidence and so on.”

Despite that atmosphere, Forrester believes the EU would allow the UK back in if there was ever a change of heart. “I don’t see why they would not be willing to. It would make things a great deal easier. The negotiations would be toothy, and prolonged, but I would have thought it not impossible that in my lifetime there will be a return, a swinging of the pendulum.”

One of Forrester's continuing enthusiasms is the Franco-British Lawyers Society, of which he is President. “That's something every Scottish lawyer should join.”

With chapters based in Belfast, Edinburgh, London and Paris, regular meetings “on all manner of subjects” have since COVID been replaced by webinars (comparing the approach to the pandemic has been a recent theme). A major colloquium is held every two years on naval cooperation in the Channel, as well as frequent sessions on succession, choice of law, animals (held in the French Senate!), refugees, pollution, practical Brexit problems, comparative constitutional issues and more. Guidance is offered for young lawyers on looking for a job, there is a student focus, “and we also have the re-enactment of famous trials – Oscar Wilde's was rerun in the Supreme Court building, we plan to do Oscar Slater, and there's one brewing in Paris for a famous miscarriage of justice there. It's a really unique organisation, and fun”.

“Good speakers are ready to make 11.15 to 12 on Tuesday mornings whereas they would not be able to give a whole day to a conference. So I think there are going to be interesting changes in how legal conferences are organised and legal societies operate in future.”