Courts set to be tested by Brexit questions: Carloway

“Mind stretching” questions about the status of European Union law post-Brexit will face the courts, and guidance should be provided in the Government's promised Great Repeal Bill, the Lord President has told a special conference organised by the Faculty of Advocates.

Speaking to an invited audience at the event “Scotland's Options”, held on Friday, Lord Carloway highlighted a number of issues with which the courts were likely to be faced.

While the purpose of the bill, he observed, was to provide maximum certainty by maintaining EU law wherever the UK Government regarded it as appropriate to do so, “Freezing EU law as it stands is likely to be a very onerous task.” Any bill would have to “set out with some precision” what was to be retained, its status, and when it was to be applied. That also applied to case law of the EU Court of Justice – and what would happen to cases referred to the CJEU by the UK courts but not yet determined?

Turning to the position of such frozen EU law post-Brexit, Lord Carloway referred to a “schism” that would exist between EU law in the EU and EU law in the UK. “It might be thought that the extent to which the UK courts are to take cognisance of decisions of the CJEU which postdate Brexit is a matter of policy for the UK Government to determine, and not one which is appropriate for judicial comment”, he continued. “In the absence of clarification in the Great Repeal Bill, it may, however, be left to the courts to determine the issue; a matter which may take not a little time and judicial effort to resolve.”

Further, while the principle of primacy of EU law would cease, how would that apply to pre-Brexit legislation put before the court post-Brexit? “If the courts were to disregard the supremacy of EU law over domestic law in interpreting a pre-Brexit piece of legislation, this may undermine the status of the pre-Brexit law as being truly frozen at the point of exit. This is yet another mind stretching question which could take a long time, and perhaps several appellate stages, to be answered.”

There would also be a “fundamental policy choice” for the UK Government to decide whether the courts, in interpreting pre-Brexit law, ought to maintain the purposive approach to interpretation by which the CJEU had regard to the spirit of the aims of the EU as a whole, “given that the context in which the legislation is being interpreted may be very different from its original purpose, as a consequence of the UK’s departure. Consideration must also be given to whether the fundamental principles of the EU ought to be applied post-Brexit at all”.

Lord Carloway also referred to the legal position that would result if Scotland were able, as proposed by the Scottish Government, to accede to the European Economic Area Agreement, thus retaining access to the European Single Market. Many of the EU law cases that had come before the Inner House would still be subject to the same substantive law, though fewer environmental matters would be covered, challenges based on free movement of goods would not be able to rely on the Common Agricultural Policy, and “It would not be possible to rely on the prohibition against taxing strengths of alcohol differently in challenging a minimum pricing measure.”

However “the role of the court would change significantly”. The jurisdiction of the CJEU would be ended, though supervision would be exercised by the EFTA court, and the principles of interpretation would also change. It might bring some litigation back to Scotland that was currently conducted mainly in London.

The Lord President concluded by affirming the expertise of the Scottish courts. “Despite the occasional hesitation of some counsel to accept the depth of the court’s knowledge, the appellate divisions are now, and have been for some time, familiar with interpreting and applying the principles of EU law, even if that has not always been so”, he stated. “Any innovation, or renovation, which is necessary as a result of the current political process will in time become part of the standard jurisprudence of the courts.

“Scotland has a strong tradition of having lawyers steeped in the Europe context. The judiciary too maintain important links with the European courts. The Scottish legal system has roots immersed in the ius commune of post-Roman times. All of this existed long before the European Union was even thought of. There is no reason why it ought not to continue.”

Click here to view the text of Lord Carloway's address.