Much has been written on the relationship between Parliament and the government in the wake of Brexit. Very little attention has been given to the role of our courts after Brexit, which should not be overlooked. There are two important reasons why we should focus on this, writes Martin Brenncke (Aston Law School). First, judges will be key players in delivering the goals of the statute that takes us out of the EU, the EU (Withdrawal) Act 2018. Second, this Act has the potential to intensify the shifting of power from Parliament to the courts.
Looking at the first reason, we should not be blinded by section 1 of the Act, which repeals the European Communities Act 1972. Many bridges to the EU will remain after Brexit. That is because the 2018 Act also aims to ensure continuity of the law applicable in the UK when it leaves the EU. The Act achieves this goal by converting most of existing EU law into UK law after exit day (currently 31 October 2019). EU law before exit day will simply become UK law after exit day. The Act calls this new body of law “retained EU law”. Domesticating EU law avoids gaps on the statute book and ensures legal certainty, which benefits businesses and future litigants. In addition, pre-exit case law of the Court of Justice of the European Union will continue to bind lower UK courts. These aspects are clear from the text of the 2018 Act, but the goal to ensure continuity of the law applicable in the UK has a much further reach.
The Act also domesticates rules and principles that guide the CJEU when it interprets EU law. For example, the recitals that precede the text of EU Regulations will continue to inform the interpretation of these Regulations in their retained version. Retaining EU interpretive rules and principles achieves continuity in how retained EU law is interpreted before and after Brexit, but it also means that the 2018 Act incorporates elements of EU legal culture. A consequence of this legislative choice is a Europeanisation of UK legal culture after exit day: an irony of Brexit. This example illustrates that the assumption that Brexit is a clear break from EU law is contradicted by the detail of the legislative scheme. UK law will remain deeply intertwined with EU law after exit day. Just how deep will become a decision for UK courts.
If we dive deeper into the details of the Act, we reach the question of whether EU ideology is domesticated and made ‘British’. The CJEU does not approach EU law with a particular national legal mindset, but with an EU mindset. This makes sense in a Union of 28 where the law needs to be interpreted uniformly in all member states. Does the EU (Withdrawal) Act 2018 domesticate this style of reasoning of the European Court? Do UK courts have to interpret retained EU law after Brexit with an EU mindset, with the goal in mind that this law is applied uniformly throughout the EU and with the ultimate goal in mind to achieve an ever closer Union? This seems bizarre after leaving the EU. Yet the answer to these questions is not obvious because the CJEU’s reasoning style is part of its case law which is domesticated by the 2018 Act. As there are valid arguments in support of different answers to these questions, this issue may become a major point of contestation in UK courts. It will be interesting to see whether British nationalism paired with anti-EU undertones, as opposed to an EU ideology, will develop and grow post-Brexit and influence the interpretation of retained EU law.
Turning to my second claim about the role of UK courts after Brexit, the EU (Withdrawal) Act 2018 has the potential to strengthen rather than weaken the courts’ institutional and constitutional position. EU membership has enabled national courts to disapply Acts of Parliament that conflict with EU law. This power will slowly wane under the terms of the 2018 Act, and some scholars say this profoundly restructures the relationship between the courts and Parliament. Such a viewpoint neglects the courts’ powerful role in the area of statutory interpretation. UK courts have in the past re-interpreted domestic legislation in order to achieve an outcome that is in accordance with an applicable EU Directive. Being able to alter the meaning of legislation involves a transfer of practical legislative power from Parliament to the courts. The EU (Withdrawal) Act 2018 retains this status quo: UK courts keep their significant role in interpreting retained EU legislation in accordance with EU Directives.
Another constitutional ramification of the 2018 Act is that it increases the courts’ institutional position as policy innovators. The Act delegates significant policy choices to the judiciary. For example, in its section 5(5) contested questions about the extent of human rights protection after exit day are handed over to the judiciary. This is ironic in the light of political criticism that judicial interpretations of Convention rights protected under the Human Rights Act 1998 have received in the past. This, in turn, had created calls in Conservative circles to decide contested questions about the extent of human rights protection in Parliament rather than in the courts. In section 6(2), domestic courts are given the power to determine what weight is attached to post-exit CJEU case law. In section 6(3), the question to what extent the EUWA domesticates the CJEU’s style of reasoning is not clearly answered by the Act itself. The vagueness inherent in these and other provisions of the 2018 Act is deliberate. It is a delegation of law-making power from Parliament to the courts.
Lord Neuberger ‘warned’ Parliament that the more policy decisions are delegated to the judges under the EU (Withdrawal) Act 2018, the more judges think that they have more and more of a policy role. His Lordship’s statement indicates that judicial attitudes towards judicial law-making and policy-making are likely to be strengthened after exit day. The UK constitution is becoming more judicialised and the EUWA confirms this.
To conclude, the weakening of Parliament’s position in the constitutional landscape is not restricted to Parliament’s relationship to the executive but also extends to its relationship to the courts. At a time when Parliament aims to take back control and when the Supreme Court arguably strengthened the role of Parliament in Miller, it is certainly ironic that the EU (Withdrawal) Act 2018 acts as a catalyst for the shifting of power from Parliament to the other two branches of the state.
Martin Brenncke is Lecturer in Law at Aston Law School, Birmingham. His recent monograph ‘Judicial law-making in English and German courts’ investigates the limits of judicial power in a legal system.