Why Court Procedure is a Brexit Planning Priority

Kenneth Campbell | 13 June 2017

St George’s Hall Court Room – Liverpool, Michael Beckwith, CC0-1.0

Superficially, it might be thought that court procedure – civil or criminal – has no EU-law dimension. In fact there are EU foundations, which have thus far had little attention in discussions about the shape of post-Brexit arrangements. These are of importance for individuals and businesses across a range of sectors. This article highlights several areas of court process whose ongoing relationship with rEU will need attention at an early stage of planning and negotiation in order to ensure a smooth transition, namely: court procedures with an EU-law component; EU-based substantive law; and case law of the Court of Justice of the European Union (CJEU).

Procedures

Three aspects are especially important.

First, procedure for getting hold of evidence across borders. Currently, Council Regulation (EC) 1206/2001 provides for a standardised and relatively expedited procedure for obtaining evidence in civil and commercial matters. This applies amongst all member states except Denmark, and requires a request to be executed within 90 days. Current rules of court are dependent on the regulation, so will cease to have meaningful effect after Brexit. Existing procedures for incoming requests could conceivably be preserved by the so-called Great Repeal Bill, but outgoing requests would no longer be subject to the regulation. Several older statutes exist, but there is no alternative binding instrument covering all member states. These are perhaps capable of extension, but require early attention.

Even more important than gathering of evidence is enforcement of judgements both nationally and extraterritorially, especially for business and family disputes, but there are also serious issues about cross-border consumer and insurance disputes. A number of EU instruments are given effect via the Civil Jurisdiction & Judgments Act 1982, containing harmonised procedures for recognition and enforcement of judgements across member sates. Again, the process for incoming requests from rEU states could conceivably be preserved by UK legislation, but outgoing requests from UK courts would no longer be subject to the existing EU arrangements. Given ever-increasingly interconnected business and personal relationships, judgement enforcement is a priority area for agreement.

The European Arrest Warrant (EAW) has become a somewhat misunderstood and misrepresented, but vitally important, aspect of the EU legal order. Part 1 of the Extradition Act 2003 is the UK primary legislation giving effect to a Council framework decision taken on 13 June 2002 under the Justice & Security Pillar. The EAW is applied throughout the EU and has replaced extradition procedures within the EU’s territorial jurisdiction. Judicial procedures have been designed to surrender people for the purposes of criminal prosecution or executing a custodial sentence, and its key feature is expedited process. Following UK withdrawal, unless the EAW is retained either as part of the exit agreement or the future relationship agreement, it seems inevitable that the extradition process will be more expensive, complex and time-consuming and will require a new treaty or treaties to underpin any alternative arrangements. If some form of EAW is not retained, reversion to the European Convention on Extradition 1957 might be possible, though there would inevitably be an increased burden for criminal justice agencies. Although all EU member states are signatories, the process is not automatic, and there is a right to refuse to extradite own-state nationals.

Substantive law

In this context, ‘substantive law’ means statutes and secondary legislation. Before the election, the outgoing UK government plan was that the so-called Great Repeal Bill would repeal the European Communities Act (ECA), and at the same time preserve or ‘freeze’ EU law as it stands on the day of the exit. This will be an onerous task: there are currently over 12,000 EU regulations in force in the UK, according to EU legal database EUR-Lex. There are 7,900 statutory instruments implementing directives, according to the House of Commons library, and there are thought to be 186 Acts passed between 1980 and 2009 which have incorporated EU directives to some extent.

In the interests of individuals and businesses, legal certainty is, or ought to be, the key factor. That means the bill needs to set out with some precision what EU law is to be retained, the status of that law, and when it is to be applied. But in drafting terms there is a significant challenge here, because it will be necessary, but not sufficient, to specify that the body of domestic law having its origin in EU instruments will from exit day and henceforward have their juridical foundation in the exit bill.

There are a number of potential options following the repeal of the ECA as the source of the current constitutional authority for EU law having effect in domestic law across all UK jurisdictions. These range from no replacement through to the full (re)enactment of the substance of the ECA under a new name. At issue is the extent to which domestic courts are empowered to give effect to rights and obligations which ultimately come from an external source of law. On the one hand, Parliament could repeal the ECA with no alternative basis for the internal effect of the present EU acquis. That has been described by some commentators as ‘nationalisation’ of the acquis. While it is possible that the courts, particularly the UK Supreme Court (UKSC), could be bolder and over time craft a new constitutional approach, that seems politically unlikely. More likely, especially if there is an absence clear legislative indication in the exit bill, UK courts may continue to forge links between domestic and EU law using existing principles of judicial interpretation; specifically, the comparative method of interpretation. Judgements of the Court of Justice would, in such circumstances, carry only persuasive authority as ‘foreign law’, a point the UK Supreme Court anticipates in Miller, and which sits comfortably with the common law method. It would therefore be unwise for the exit bill to go beyond that.

Content of legal rules will not change overnight on the exit date: law, particularly statute law, remains the same until changed, unless of course they are rules which depend on some direct relationship with EU structures, which will require direct attention.

Where the meaning of provisions is well established, the better view is those understandings are not going to change immediately on exit. Challenges will come in circumstances not foreseen at the time of enactment, or in circumstances where there has come to be divergence post exit between the UK provision and the EU provision. In the absence of legislative provision, it will be for the courts to develop this using existing tools of interpretation.

CJEU case law

Headline policy of the UK government is to end the jurisdiction of the CJEU in UK cases at the point when the UK leaves the EU, and therefore ‘the bill will not require domestic courts to consider the CJEU’s jurisprudence.’ (White Paper 2.13) That might be to underestimate the ingenuity of counsel, particularly where there is a development in the CJEU case law which is closely analogous: the common law method thrives on comparison and analogy.

On the other hand, the white paper also recognises that legal certainty requires preservation of the existing understanding of law and that the common law method has built up a domestic case law around EU-derived rights and obligations, so that the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on departure day. In effect, previous CJEU case law will stand unless and until UKSC says otherwise. That seems unlikely to happen unless a given piece of repatriated legislation is in due course significantly amended, so that prior CJEU case law is no longer a reliable interpretative tool.

However that does not fully address the question of the extent to which the UK courts are to take cognisance of decisions of the CJEU which post-date actual departure. This is something which is not addressed in the White Paper, and in the absence of clarification in the bill, it maybe left to the courts to determine the issue. That seems likely to take a good deal of time and judicial effort to resolve.

It will be an important policy choice for the UK government to decide whether the courts, in interpreting pre-Brexit law, ought to maintain existing principles of interpretation, 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.

Compared with trade negotiations, these themes may appear to be plumbing. However, effective operation of the court system is integral to cross-border business and personal relations, and requires as much attention.

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Arnot Manderson Advocates

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher in the Law School at the University of Edinburgh. His expertise includes public law and professional liability.