Judge's Macfadyen Lecture highlights Brexit legal complexities

The legal complexities of Brexit are numerous, both in relation to retained EU law and matters that need to be settled as a result of Brexit, Judge Ian Forrester QC said in a lecture in Edinburgh last night.

Mr Forrester, a member of the Faculty of Advocates as well as a judge of the General Court of the European Union and an Honorary Professor at the University of Glasgow, was delivering the annual lecture held by the Scottish Council of Law Reporting in honour of the late Lord Macfadyen.

Taking the title "Brexit: a Judicial View", Judge Forrester commented that while EU law was often very detailed and technical, this was necessary in order to achieve a functioning common market. "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", he observed.

When this mass of law becomes adopted as UK law as part of the Brexit process, "to reconcile the need for good regulation with the political need to escape the reach of the European Union", an immense amount of work by the UK civil service, legislature and ministers will be needed for years in order to reshape it into the desired result for the UK.

But, he asked, how will textual disputes arising from this law be resolved after Brexit? EU law relies on general principles of interpretation, but the Withdrawal Bill will prohibit a court from declaring an action unlawful because it is incompatible with such principles. The Charter of Fundamental Rights is not to be part of UK domestic law, but it is also relevant to interpretation of EU law. 

"You can see the tensions confronting the drafters", he continued. "We must shed 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 European law to correct errors in applying European law. This touches 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."

He predicted "immense difficulty" in answering these questions, which would not disappear by "nationalising" EU regulations. The current criteria for examining the legality of European law, post-Brexit, appeared extremely complex, and political leaders "will need to address the necessity of giving guidance to the judiciary about what priorities will apply in interpretation".

The judge then noted a number of "very important" topics – as examples of a much longer list – comprising matters that would have to be settled ahead of Brexit. These included crime, policing and security; rights of pensioners living abroad; air travel; protected origins of foods; trade and customs; rights of workers and families; driving licences; and the position of the devolved administrations.

"The subjects are of immense importance and they affect the interests of literally millions of people. I summarise: we should acknowledge the difficulties, the number of topics to be resolved, and the impossibility of not addressing them. It would be a very grave matter if they were not settled by carefully drafted texts, drafting which may take a long period because the questions are very complex and difficult both legally and institutionally."

He concluded by reminding his audience of what the EU had achieved in eliminating military rivalry in western Europe, and creating a continent on which people regarded it as their right to move around while having access to healthcare, the right to equal treatment, and more.

"There is a great burden upon the negotiators to deliver a result which preserves Europe’s values. The work has started and will presumably become even more intense in the next months. The UK civil service and the staff of the EU Commission are exceptionally gifted, but their tasks are enormous. I suggest that there is a duty upon commentators, politicians, journalist, teachers and bloggers. There is a great temptation to exaggerate, to polarise, to mock, and to accuse. The seriousness of the challenge deserves better."

Click here to view the full lecture.