Professor Fernanda Nicola Discusses Opportunities for a Judicial Dialogue between EU and UK Courts after Brexit
On February 19, 2020, Professor Fernanda Nicola delivered a lecture on “Brexit: Constitutional, Economic and Political Challenges.” The lecture explained the relationship between the UK courts and the European Union Court of Justice (CJEU) as one of the key challenges to the Brexit process. She advocated for an institutional dialogue that would allow the UK Supreme Court and the CJEU to clarify the contours of Brexit. Such dialogue would also strengthen the relationship between these two national and supranational constitutional courts in reasserting their power of judicial review over Brexit.
The general election on December 12, 2019 has fundamentally changed the political dynamic driving the Brexit process. The European Union Withdrawal Agreement Bill (WAB), which became law in anticipation of Brexit on 31 January 2020, has been substantially revised (from the version which was presented in October 2019) to reflect the new Government's approach to Brexit.
One important aspect of the WAB is its reduced judicial scrutiny. This limited scrutiny is, to an extent, the product of institutional design rather than Government decision-making. From the beginning of the Brexit process it was predicted that the scrutiny of the WAB would be insufficient. First, the WAB was only submitted to Parliament for debate after the Withdrawal Agreement had been politically agreed and finalized. This meant that the Parliament’s scope for amendments was very limited. The political terms of the debate had already been negotiated, which meant the government had little willingness to hear constructive parliamentary scrutiny. Second, parliamentary procedures or constitutional provisions were largely absent, which meant the Members of Parliament did not have a structured engagement to hold negotiations of such an pivotal international agreement.
The lack of parliamentary engagement was noted in all aspects of the Withdrawal Agreement. In particular, the relationship with the judicial branch was cited as one of the key errors during parliamentary negotiations. One of the core aims of Brexit is to free UK courts from the obligation of following the CJEU’s case law. The new Clause 26 of the WAB, which was not in the October version, enables the Government to use delegated legislation to remove the obligation upon courts to follow retained EU case law. The House of Lords Constitution Committee had recommended that the power be removed from the Bill, but the clause ultimately remained in the final text of the Bill.
Under this particularly controversial WAB Clause 26(1)), government ministers will be able to instruct courts when they should deviate from CJEU interpretations of EU law, and any ministers can do so without benefit of primary law (statute) or secondary law (regulation) to give them authority to tell the courts what to do.
The new Clause 26’s significance extends even beyond its potential legal effect. The initial draft of the European Union (Withdrawal) Act, put together by Theresa May's Government in 2018, provides a scheme designed to maximize legal continuity and certainty once the UK is no longer subject to EU law. Section 6 of the 2018 Act required UK courts, other than the Supreme Court and the High Court of Justiciary, to follow retained EU case law when interpreting EU retained law. If the Government decided that it does not want to keep a particular EU retained law, or judgment from the CJEU, it would be free to ask Parliament to legislate. The decision to include the new Clause 26 into the WAB may be an indication that the Johnson Government wants to move away from the legal presumption of continuity. This fits with the Prime Minister’s stated position that a priority for the future relationship is to avoid alignment with EU law or any form of CJEU jurisdiction. Seen in this way, Clause 26 is one of the first signs of the constitutional implications of a policy of immediate divergence from EU law after the end of the implementation period.
However, according to Professor Nicola, it is not clear how this policy of immediate divergence will affect the many regulatory challenges lying ahead of the UK in the coming years as it disengages from the EU. She observed that necessarily the UK Supreme Court and the CJEU will have to engage into some kind of institutional dialogue to manage the legal transition from the European law in force in the country to an entirely national British legal system.