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Ian Forrester, Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit: A case study in complexity in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 225 - 242

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-225

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit: A case study in complexity Ian Forrester* Our continent and my native land are going through a period of exceptional tur‐ bulence. The drivers of uncertainty are several: refugees from the Middle East and Africa; the rise of populist parties who feel empowered to challenge the re‐ ceived wisdom of the so-called elites who espouse liberal values; the Trump Presidency; and of course Brexit, which presents the UK with the gravest crisis of government since the end of the Second World War. If Brexit occurs it will involve a massive alteration in how our British society is governed and how its rules are determined. Brexit, if it occurs, will represent what one English judge has called a seismic shock, a truly revolutionary change. But how violent might be the change? Scot‐ land has seen its share of great upheavals and controversies. One was the Refor‐ mation, which has, I suggest, some lessons to offer us.1 In 1560, the Papal Jurisdiction Act abolished the jurisdiction of the Pope in Scotland. A separate Act abolished idolatry and another prohibited the saying of the mass. However, in many respects, even though the jurisdictional authority of the Pope had been abolished, Scotland did not eliminate all traces of the old reli‐ gion, far from it. The church buildings remained. There was a considerable de‐ gree of tolerance, limited purges of the old clergy, and a rather modest degree of social change. The sacking by the Crown of the assets of wealthy religious insti‐ tutions was more of an English phenomenon. In particular, classical canon law remained part of the law of Scotland, albeit rooted in the civil law of Scotland * Ian Forrester QC is Honorary Professor at the University of Glasgow and doctor of laws honoris causa. He was appointed judge at the General Court of the European Union in 2015. These remarks are purely personal and of course in no way reflect the views of the institution’s members. Those interested in the evolution of the Brexit phenomen may review his James Wood lecture Ian Forrester, Free movement of persons: the right we must leave behind?, in: https://sulne.files.wordpress.com/2017/05/free-movement-of-persons_judge-for rester.pdf, last accessed 25 October 2018; Ian Forrester, Brexit reflections: where do we stand?, in: European Competition Law Review, 40 (2019), p. 243 ff; notably on trade IanForrester, Shall we in one bound be free? The European Court and European law after Brexit, in: https://www.biicl.org/documents/1685_judge_ian_forrester.pdf?showdocumen t=1, last accessed 25 October 2018; and notably on judicial resolution of controversy IanForrester, On judicial resolution of controversy (no title), in: http://www.advocates.org.u k/media/2724/forrester_macfadyen_lecture.pdf, last accessed 25 October 2018. 1 I acknowledge the perceptive insight of Michael Clancy Obe, a considerable expert on the challenges of Brexit, in noting these possible parallels. 225 and not in the authority of the Roman Catholic Church. To quote the venerable Stair’s Institutions: This pontifical law extended unto all persons and things relating to the Roman church … as orphans, the wills of defunct, the matter of marriage and divorce. And so deep hath this canon law been rooted, that, even where the Pope’s authority is rejected, yet consideration must be had to these laws, … as containing many equitable and profitable laws, which because of their weighty matter, and their being once received, may indefinitely be retained than rejected.2 So despite the fundamentally different legal environment there was a choice to retain some of that which was familiar. There were of course problems and con‐ troversies. Life muddled through nonetheless. 450 years after the Reformation, assuming Brexit goes ahead, I venture to pre‐ dict that it is not the case that zealots will burn books on European law, or im‐ prison European law scholars, or burn flags or smash icons on which yellow stars appear against a blue background. Instead, as with the Reformation, in Scotland after Brexit there will be little change in many areas of daily life; but there will also be big changes. Following the June 2016 referendum, the country’s political leaders were faced with exceedingly difficult choices: political, constitutional, commercial, regulatory and legal, very many of which remain unresolved. It is frequently as‐ serted that many of the leaders of both campaigns believed that there was no likelihood of a leave vote, so there was little examination of a realistic “Plan B”. Even today, some spokesmen give the impression that making a Brexit is essen‐ tially similar to leaving a golf club because the subscription is too high or the showers are not clean enough. The aspiration to make a “clean break” Brexit seems dangerously fanciful, precisely because so many valuable interests would be at risk. Tempting though it may be, it is not my intention to discuss whether a Brexit would be a good thing or a bad thing, politically speaking. Judges are not paid to decide what is good for the country. They do not deal the legal cards, as Sir Ge‐ offrey Vos put it. Judges in the UK are observing the ongoing debates and will await outcomes which are, so to speak, judicially actionable. But judges can properly point out problems and questions which are likely to need attention, un‐ certainties which need to be borne in mind as the negotiations progress. 2 James Stair, Institutions of the Law of Scotland, Book 1, Title 1, ed. David M. Walker, 1981, p. 82. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 226 I propose to consider some practical legal concerns which would be presented by a Brexit: 1. The first relates to an area where there may not be much change, and where the government appears to hope for as little change as possible – the techni‐ cal regulation of our daily lives. I will discuss the spirit in which European Union law should be applied judicially in the UK after a Brexit would have occurred; 2. The second is to record the existence of matters which need to be addressed – and where there will be grave problems if they are not addressed – before a Brexit happens; 3. The third and last is a plea for moderation and clarity in discourse. Where are we today? Since 1 January 1973, the UK has managed the regulation of much of the coun‐ try’s affairs in collective cooperation with its European partners.3 The topics of cooperation in regulation are vast and include access to higher education, agri‐ culture, professional qualifications, access to healthcare, sex discrimination, cus‐ toms, potentially hazardous chemicals, financial services, energy, nuclear safety, national security, terrorist asset freezes, the right to reside, mutual recognition of judgments, food safety, animal welfare, environmental protection, criminal law enforcement, fisheries and data protection. The UK is a highly regulated society and I have no expectation that Brexit will make it more casual about workers’ rights, dangerous chemicals, protection of wildlife, equal pay for men and wom‐ en, child abduction, access to data, competition, motor vehicle design or avia‐ tion. So what is going to happen? Lord Cockfield, the father of the 1992 programme to complete the internal market, used to say that sovereignty was like energy: it could not be destroyed but it could change its shape. The UK has pooled its capacity to regulate with its EU partners. It has exercised its sovereignty in cooperation with a growing num‐ ber of other European democracies, at first just 8, now 27. The research, consultation, debate, and decision-making are done collectively, usually involving expert agencies or committees. Independent EU agencies are responsible for regulating pharmaceuticals, food safety, security, animal feed, maritime safety, aviation and many other topics.4 The agencies are located in I. 3 The UK acceded to the predecessor of the European Union as of 1 January 1973 pursuant to the Treaty of Accession and the passage of the European Communities Act 1972 (c. 68). 4 See ´The EU Agencies working for you`, Luxemburg 2017, https://publications.europa.eu/e n/publication-detail/-/publication/f164c0d5-3aab-11e7-a08e-01aa75ed71a1/language-en/for mat-PDF/source-104129608, last accessed 9 September 2019. Ian Forrester 227 London (medicines), Alicante (trademarks), Angers (plant varieties), Helsinki (chemical substances), Riga (telecommunications), Parma (food safety), and some twenty further cities across the 28 Member States of the EU.5 The extent of the responsibility of each agency varies but each of them is engaged in enforce‐ ment, investigation and other regulatory actions. These agencies employ experts and produce recommendations or opinions. These technical recommendations are then considered as policy and political questions by the Member States who try after debate to reach a common position. The texts will often have been draft‐ ed to reconcile different national interests. Thousands of individual problems arise on subjects such as food safety, customs, health, environment, data security, chemical substances, privacy, animal welfare, private international law and the rest. These debates are resolved within the technical committees. They may ren‐ der an opinion on the basis of which the Commission will propose or adopt ac‐ tion. UK officials have been exceptionally successful in contributing UK-friendly ideas in the drafting process.6 Sometimes the national interest at stake might not have included the UK, while in other cases the text may have been tweaked pre‐ cisely to satisfy UK concerns.7 Pursuing consensus is the rule, but in some cases there is a vote. A small number of texts (dozens out of thousands) have been adopted despite UK opposition. During the debates, it often happens that a state’s scientific representative will plead for his state’s view of the issue.8 A Swedish national expert may favour different environmental or animal welfare standards than a Portuguese expert. Neither is right or wrong, but they are different. Reaching consensus between them has helped the market (for the goods made in accordance with the consen‐ sus) to grow to 500 million people. There are scores, maybe hundreds, of techni‐ cal or advisory committees staffed by national experts. The purpose of these mechanisms is to help form and implement the language of the legislation – making it work in the real world. 5 Ibid. 6 Andrew Lilico, Staying in the EU would see the UK facing up to economic domination, in: http://www.telegraph.co.uk/business/2016/02/22/staying-in-the-eu-would-see-the-uk-facing -up-to-economic-dominat/, last accessed 25 October 2018. 7 As an example of both phenomena, the Directive on the protection of young people at work (Directive 94/33/EC) was opposed by the then Conservative government; however, al‐ though the UK was unable to block the passage of the Directive, the Government of Prime Minister Major was able to persuade its EC partners to include various opt-outs, exceptions, and implementation delays into the text. Gerda Falkner et al., Non-compliance with EU Di‐ rectives in the Member States: Opposition through the backdoor?, in: West European Polit‐ ics, (27) 3, 2004, p. 452 ff. 8 For a review of the difficulties of the precautionary principle see Ian Forrester, The Dan‐ gers of Too Much Precaution, in: Hoskins / Robinson (eds.), A True European: Essays for Judge David Edward, 2004. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 228 Topics have included such things as whether an antibiotic growth promoter is an appropriate feed additive for calves, turkeys and pigs, what subjects a quali‐ fied doctor should study, whether phthalates are hazardous to babies who suck soft plastics, or whether a particular pesticide is safe to be put on general sale or should be removed from the shops. As technology has advanced and as technical choices have become more sophisticated, an ever wider and deeper mass of regu‐ lation has emerged.9 The Confederation of British Industry (CBI) has estimated that the roles of 34 EU agencies will need to be replicated in the UK to perform for the UK the elaboration of technical regulations parallel to those currently produced under the auspices of EU27.10 European Union law primarily aims at the construction of a functioning com‐ mon market, a process which involves the reduction or removal of national rules which impede that goal. While most EU law is economic in nature, it is necessar‐ ily technical, prescriptive and precise. 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 ap‐ plies to cars, pharmaceuticals, pesticides, plastics, chemicals and fire extinguish‐ ers. European Union law covers the qualifications of the Spanish citizen who works as a doctor in Edinburgh and the Irish pharmacist who dispenses the medicine, as well as the safety and efficacy of the medicine (and the patents cov‐ ering the active molecule in the medicine as well as those covering the process for making that molecule). Regulation is an ongoing process. Science and industry keep discovering new techniques and technologies and creating new products. It is not practical to de‐ cide each new inclusion on a white list or a black list via a parliamentary vote, still less a vote by 28 parliaments. The answer to the democratic impossibility of parliamentary voting is expert advice, followed by the adoption of secondary legislation. The goal of these communings is the creation of a competitive market that will favour innovation, risk-taking, decent treatment, and the expansion of choice to consumers through competition, prosperity and security. The process is largely unknown to the public, and has been criticised for being opaque and undemocrat‐ 9 As of 2015 there were an estimated 11,547 Regulations and 15,023 Decisions from the European courts, along with an additional 62,397 standards promulgated by specific agen‐ cies clarifying and supplementing the Regulations and Directives, and 18,545 Decisions made by different agencies interpreting the Rules, Regulations and Directives. It would not be surprising if these numbers increase. EUABC, Number of laws – updated May 2015, in: http://en.euabc.com/word/2152, last accessed 25 October 2018. 10 Kate Allen / George Parker, UK set to keep EU Regulations after Brexit, in: https://ww w.ft.com/content/64d30780-10b5-11e7-b030-768954394623, last accessed 25 October 2018. Ian Forrester 229 ic.11 The “bossy” “interference” “of Brussels” in the internal affairs of the UK has been much criticised. So there is a heavy burden of scepticism on the part of some of the English public against continuing “intrusive” EU regulation. Rendering EU Law into UK Law The European Communities Act 1972 incorporated into UK law the EU treaties and the law promulgated under them, and charged the UK government with en‐ forcing this law.12 As part of the Brexit process, the Withdrawal Act is expected to be the mechanism to achieve national jurisdictional independence. That Act is intended to remove EU law from its current status of primacy over the UK’s do‐ mestic law and institutions.13 The Withdrawal Act would thus fill the void that would otherwise be left if the UK were to renounce but not replace that vast body of law, the acquis communautaire, which has come into being since 1957 and into UK law progressively since 1973.14 Thus the corpus of European law as of the date of repeal would become UK law. This ‘nationalisation’ will include the primary treaties, regulations, directives, and guidance offered by the Com‐ mission, and the case law of the European Courts. The total number of texts is maybe as many as 92,000 or more. The BBC has mentioned at least 80,000 dis‐ tinct pieces of legal text.15 In any event, it is proposed that tens of thousands of EU texts will enter UK law via the Withdrawal Act, like a vast tangle of EU wires being plunged into a bath of electroplating to make their nationality that of the UK. They cover the environment, animal feed, quality of drinking water, data protection, seatbelt an‐ chorage points, power consumption of vacuum cleaners, labelling for bottled wa‐ ter, the conditions under which a person suffering from diabetes may be issued a 11 In recent months, as the terms of the withdrawal legislation are debated, the use of socalled Henry VIII clauses has been criticised, since the withdrawal legislation (at least in its draft form) would empower ministers to adopt or adapt rules without parliamentary ap‐ proval. However, it is doubtful if ten or even twenty years of parliamentary scrutiny would be sufficient to oversee closely the entire acquis communautaire being brought into effect as UK norms. 12 European Communities Act 1972 (c. 68) Pt 1 ss. 2(1) & (2). 13 ‘EU Withdrawal Bill: BBC, EU Withdrawal Bill: A guide to the Brexit repeal legislation, http://www.bbc.com/news/uk-politics-39266723, last accessed 25 October 2018. 14 See Theresa May’s Conservative Party conference speech on Brexit: Josh May, Britain af‐ ter Brexit: A vision of a global Britain, in: https://www.politicshome.com/news/uk/politica l-parties/conservative-party/news/79517/read-full-theresa-mays-conservative, last accessed 25 October 2018. See also HM Government, The United Kingdom’s exit from and new partnership with the European Union (Cm 9417), in: https://www.gov.uk/government/uplo ads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_ partnership_with_the_EU_Web.pdf, last accessed 25 October 2018. 15 ‘EU Withdrawal Bill’, BBC. See also n. 10 supra. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 230 driver’s license if they suffer hypoglycaemic episodes and many more.16 Often the rule as originally adopted will have been changed, maybe dozens of times, to respond to technical progress. There are thousands of texts because life is com‐ plicated and highly regulated. The UK will have three choices: one, set up a UK mechanism for adopting and enforcing UK standards, which will be stricter or less strict than those in the EU27; two, follow what standards are adopted by the EU27 according to proce‐ dures to be adopted case by case; or three, not regulate the topic. (During the ref‐ erendum campaign there was talk of repealing silly and intrusive regulations, but since the referendum I have not heard of specific candidates for deregulation – there may be some.) There may be fields where the policy of the UK would di‐ verge from the policy of the EU: agriculture is one example; fisheries are likely to be more difficult. It may be helpful to remember the reception of Roman law in the six centuries after the death of the Emperor Justinian across what used to be the Roman Em‐ pire. Different flavours of Roman law developed, so that there was a Lex Ro‐ mana Visigothorum in one territory, different in some respects to the law in what we now call Italy or Germany. Roman law was far less detailed and prescriptive. Today, EU law and national laws by contrast are very detailed and technical. But we might see the emergence of divergence in application as between EU27 and the UK. To reconcile the need for good regulation with the political need to escape the reach of the EU, the concept would be to bring the whole intricate mass of EU law into UK law and then, over the years, by correcting, pruning, winnowing and discarding, to arrive at a point where the UK has the legal framework that its po‐ litical leaders desire. That will involve an immense amount of work by the UK’s civil service, and its legislature and ministers. I picked the field of technical regulation to show how texts are drafted that are technical rather than political. Now let’s pass to how disputes about their mean‐ ing would be handled. Foreseeable Controversies As of the date of a Brexit, the process of rule-making and enforcement within these expert entities will not stop, and indeed should not stop, since new dangers 16 See e.g. Directive 2016/1106 [2016] OJ L183/59 amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences, http://eur-lex.europa.eu/legalcontent/GA/TXT/?uri=CELEX:32016L1106, last accessed 13 March 2018. Ian Forrester 231 will be identified, new products will be proposed, new licensing requirements will emerge and adverse events about existing products will be reported. To take one example, pharmaceuticals are today subject to successive tests in the laboratory, then on animals, then on healthy human volunteers, then on se‐ lected patients in order to demonstrate safety and efficacy.17 Once approved, the performance of the medicine is regularly monitored and any apparent “adverse health events” reported, for corrective action to be taken.18 Animal feed in line with the advice of the Scientific Committee on Animal Nutrition is subject to comparable but lighter rules, as are food additives and cosmetics.19 The basic legislation will have set up a process for deciding technical controversies, and that process is ongoing. The need for a process to approve or disapprove prod‐ ucts or standards is of obvious importance. The decisions taken can have serious economic, human and environmental consequences. It is very common for very divergent technical views to be advanced in in‐ tense lobbying by trade associations, NGOs, governments, and individual scien‐ tists. Amateur gliding pilots are actively involved in discussing airspace limita‐ tions. Football’s executive bodies negotiate the training of young professional players. The exchanges are necessary to satisfy technical, political and popular concerns. The outcome of these exchanges will almost never be wholly ‘good’ or wholly ‘bad’. If ‘public health’ is favoured, ‘innovation’ may suffer. If farmers will be relieved, advocates for the environment may be dismayed. ‘Consumer safety’ and ‘price’ may be opposing concerns. These comments are not meant to caricature, but to record in shorthand form the sensitivity of the technical choic‐ es. So controversy as to the outcome is very likely. The Judicial Function These EU regulations set forth procedures, deadlines, governing criteria and standards, dangers, precautions, how to handle freshly identified problems and adverse health events. And of course they lead to the adoption of measures which can be judicially challenged, either directly by those who are ‘directly and individually’ affected, or indirectly by a challenge before a national court at the 17 See Regulation (EU) No 536/2014 of the European Parlimant and of the Council of 16 April 2014 on clinical trials on medical products for human use and repealing Directive 2001/20/EC (clinical trials); See also Nathalie Bere, ‘How are medicines evaluated at the EMA’, in: http://www.ema.europa.eu/docs/en_GB/document_library/Presentation/2016/02 /WC500200845.pdf, last accessed 3 November 2018. 18 Regulation 536/2014 [2014] OJ L158/1 (clinical trials). 19 Compare Regulation 536/2014 [2014] OJ L158/1 (clinical trials) and Regulation 882/2004 [2004] OJ L165/1 (animal feed) or Regulation 1223/2009 [2009] OJ L342/59 (cosmetic products). Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 232 instance of a trader affected by the EU rule.20 That presents a set of familiar liti‐ gious problems which are addressed under the current regime. EU regulatory agency activities will continue in the EU27. These EU agen‐ cies’ decisions will of course be subject to judicial review in Luxembourg, either by appeal to the General Court or by reference from a national court to the Court of Justice. Suppose that a health scare has arisen about an additive, and the rele‐ vant EU scientific committee decides either to ban it or to approve it under limi‐ ted conditions. What happens if the UK experts and the EU experts take different views? And during the period after Brexit, but before the establishment of a UK agency or committee of experts, what happens if the EU27 adopts a new stan‐ dard? Two current or near-future issues can serve as examples of problems after a Brexit: shall UK farmers be free to use the herbicide glyphosate? And what safety standards shall apply to driverless cars in the UK? The right of a UK trader to challenge the new rule in Luxembourg on the grounds of ‘direct and individual concern’ will still be available, but that is a very narrow test. Most litigants have to raise such concerns before a national EU judge and hope for a reference. EU norms will be applicable in the UK but will be rebranded as UK national law. This ‘nationalisation’ would respond to the sovereignty concern, in the sense that ‘we would have regained our independence’. But every regulatory text will present ambiguities, some of them unforeseen, some of them arising from the deliberate making of a choice not to decide a particular question. Hundreds of disputes about interpretation are in progress every day. Is the medicine effica‐ cious? Is the work of a supermarket cashier (mainly female) equivalent to that of a shelf stacker (mainly male)? Is the bathroom tile to be classified for customs purposes as a filled plastic or an artificial stone? Is the curriculum of a law course in one member state equivalent to the norm? Should the herbicide have been prohibited or permitted? Was the decision on its future use properly rea‐ soned? Was the evidence about the feed additive fairly presented in the Regu‐ lation which prohibited it? When deciding such controversies in court, any judge will be guided by the recitals and the other words of the regulation or directive. Today, the UK judge – like any other national judge – will also have regard to the purpose of the mea‐ sure, the relevance (or not) of the precautionary principle, the importance of mar‐ ket integration and, perhaps, the Charter of Fundamental Rights.21 In a market of 28 countries and 500 million people, consistency is an obvious merit. If the same 20 TFEU Art 263. For example, the trader who is prosecuted under national law for selling a product in the manner blessed by European Union law: ECJ, Judgment of 5 April 1979 – Case C-148/78, Ratti [1979] ECLI:EU:C:1979:110, point 23. 21 Charter of Fundamental Rights of the European Union, 2012/C, 326/02 of 26.10.2012. Ian Forrester 233 product when imported from China is subject to a 5% customs duty in Newcastle and a 7% duty in Bordeaux, there will be a flood of imports into Newcastle. If the herbicide cannot be used on crops in the EU, all food processors and shops will avoid buying crops made using the herbicide. Judicial Review in the UK after a Brexit But consider the English or Northern Irish or Scottish judge confronted with a textual dispute after a Brexit: What weight should be ascribed to consistency with the rules prevailing in the EU? Will such consistency be of high importance or of low importance? Will the findings of the EU Scientific Committee on Ani‐ mal Nutrition be treated as authoritative or merely interesting? What technical priorities should apply in these fields? Will a high level of protection be a priori‐ ty for consumers, female workers, animals, and the environment? British judges could be expected to pursue consistency with the acquis com‐ munautaire, so as to make trade easier. Alternatively, consistency with the EU27 could be given a low priority because of the political importance of ‘regaining our independence’ so that judges are told to have no regard to ‘European norms’. Or again, the subject could vary sector by sector: consistency with EU27 on health and safety and customs, but an ‘independent’ line on mutual recognition of qualifications or data protection. EU law relies on principles of interpretation, some quite abstract, to achieve something like ‘fairness’ or ‘sound government’. The high general principles of proportionality, legitimate expectations, sound administration, due process, nondiscrimination, and so on, each might affect how to address a controversy. The Charter of Fundamental Rights was an attempt to codify certain basic principles of fair play into EU law. Its future after Brexit is rather entangled. The Charter is not to be part of UK domestic law, but it is of course an ongo‐ ing part of EU law that Brits can refer to in UK courts when interpreting what is to be called ‘retained EU law’, (the directives, the regulations and other directly effective bits of EU law). So for the rules which existed prior to Brexit day, the Charter (and other general principles) can be relied on. But there will be no right of action for failure to comply with general principles of EU law. Indeed, cl. 3(2) of the Withdrawal Act says that after Brexit ‘no court may decide that action is unlawful because it is incompatible with general principles of EU law’. General doctrines and the Charter can be looked at to help interpret retained EU law, but not as a means of annulling or challenging errors or excess by the administration. This is to help restore the parliamentary sovereignty that the EU had encroached upon. So old retained EU law remains supreme, yet the tradition‐ Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 234 al means of challenging abuses in applying it seem to have disappeared. (There is however a provision that a challenge would be valid if such challenge was pro‐ vided for in ‘regulations made by a Minister of the Crown’.) How to reconcile parliamentary sovereignty with the need to accord to citi‐ zens the opportunity to vindicate rights created by EU law? You can see the ten‐ sions confronting the drafters. “We must escape the encroachment on UK sovereignty. We cannot not regulate the areas of daily life covered by EU law to‐ day. We must shed any 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 EU law to correct errors in applying EU law”. The underlying topics of regulation include equality of pay, the environment, health and safety, free movement, and many other aspects of daily life. It might seem that the es‐ tablished way to achieve judicial oversight would have been diminished. I am not an expert in UK constitutional questions, and these are quite basic reactions to the extraordinary complexity of the doctrines: the ultimate shape of the Act may be different. I predict that there will be immense difficulty in decid‐ ing these questions. Drafting the texts is presenting very intense debate and dis‐ agreement.22 Here are a few conclusions about how to approach these likely controversies: – For as long as provisions of EU law are to be applied in the UK, for so long will it be necessary to think through how EU law problems will be litigated. – It is not by ‘nationalising’ EU regulations that the country will free itself of EU law. Nor will disputes as to the interpretation of doubtful texts disappear. – The current criteria for examining the legality of European law, post-Brexit, appear extremely complex. – Political leaders will need to address the necessity of giving guidance to the judiciary about what priorities will apply in interpretation. – The UK judge should not be blamed for a lack of patriotism if he or she chooses to follow a ‘European’ interpretation of the text. What about the future? Geographic proximity requires cooperation. The UK has pooled its sovereignty for 44 years and has in the process opened up for its citizens and businesses a II. 22 On July 16th, after the final of the World Cup, the political future of the draft legislation to get parliamentary implementation of the withdrawal was quite uncertain, and it became more so on July 17th, when the government’s majority fell to 3 votes in the House of Com‐ mons. Ian Forrester 235 huge market by having collectively drafted rules on hundreds of matters. With‐ drawing from these rules, annulling these rules, and not replacing them would trigger a number of misfortunes in matters small and large. The rules touch cru‐ cial areas of public policy which cannot be arranged informally. They depend for their effectiveness on close cooperation. But they were conceived, drafted, and governed within an EU framework. If Brexit is to go ahead, a number of very important matters will need to be settled first. I will mention a few topics. The whole list is much longer. Crime, Policing, and Security – Cross-border arrangements regarding police cooperation, child abduction, football hooliganism, the European Arrest Warrant23, and terrorism; – Cross-border judicial cooperation in matters of civil justice, the taking of evi‐ dence, the enforcement of judgments, or the proper law of cross-border con‐ tracts.24 In both cases, the political problem is that, while the high desirability of main‐ taining existing levels of cooperation is obvious, the framework of cooperation is EU legislation. Criminal jurisdiction cannot be arranged by an informal friendly deal. I cannot imagine not establishing a method of permitting cross-border cooper‐ ation in these fields, but that will involve procedures established by EU law. The Latvian suspect who is candidate for deportation to Dundee will demand the pro‐ cesses and protections of EU law. Political doctrine and legal necessity will be on opposite scales in the balance. Air Transport The European Common Aviation Area allows EU28 airlines to fly within the EU without needing bilateral route-access agreements between governments.25 23 Lords Select Committee, ‘Security risk to UK identified if European arrest warrant is not replaced’, Parliament UK [online] (27 July 2017), https://www.parliament.uk/business/co mmittees/committees-a-z/lords-select/eu-home-affairs-subcommittee/news-parliament-201 7/arrest-warrant-report-published/, last accessed 13 March 2018. 24 See European Commission, ‘Judicial Cooperation in Civil Matters in the EU’, A Guide for Legal Practitioners (2014), https://publications.europa.eu/en/publication-detail/-/publicatio n/a9da11b8-0a6a-491e-8ae9-a0ff9d7e8535/language-en, last accessed 15 March 2018. 25 European Common Aviation Area Agreement (ECAA) [2006] OJ L285, 16/10/2006 P. 0003 – 0046, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22006A10 16(01), last accessed 13 March 2018. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 236 Membership in the European Common Aviation Area and participation in the EU-US Open Skies Agreement have been the regulatory core of the activity of the numerous airlines based in the UK.26 Under current EU laws,27 EU citizens are entitled to claim compensation if their flight is delayed or cancelled. Far more economically important, the various air service agreements between the EU and third countries like the US are the current basis for flights from, say, LHR to JFK. The numerous airlines that are based in the UK would be handicapped if the UK were outside the European Aviation Security Agency.28 These uncertainties are well recognised and are being discussed. Until there is clarity as to the nature of the long-term relationship, the rules to govern aviation remain uncertain. Once again, I cannot imagine that the advent of a Brexit would be followed by the grounding of flights from London to New York or Glasgow to Toronto. But it remains the case that such services depend on international agree‐ ments, which currently function because the UK is within the EU. Trade and Customs Article 207 of the Treaty on the Functioning of the European Union (TFEU) pro‐ vides that the EU has exclusive competence to negotiate trade deals with third countries on behalf of its Member States. According to the former Attorney-Gen‐ eral, Dominic Grieve, QC, the Foreign and Commonwealth Office reckons that the UK is party, since 1834, to over 13,200 treaties, ranging from the UN Charter to fishing rights, of which some 700 have dispute resolution mechanisms. These frequently provide limitations on how the countries can behave towards their citizens and others. According to the Financial Times, currently there are around 759 bilateral EU agreements covering more than 160 countries with rele‐ vance to the UK.29 Thus, the UK will have to embark upon bilateral bargaining in order to replicate for the UK the advantages established by these agreements 26 Edmond Rose / Rob Walker, UK Aviation and Brexit: Pragmatism vs Politics, ICF White Paper, (24 March 2017), https://www.icf.com/resources/white-papers/2017/uk-aviation-an d-brexit, last accessed 13 March 2018. 27 EU Passengers Right: Directive Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004. 28 Institute for Government, ‘Aviation and European Common Aviation Area’ [online], (14 August 2017), https://www.instituteforgovernment.org.uk/explainers/european-common-a viation-area-ecaa-brexit-explained, last accessed 13 March 2018. 29 Paul McClean, After Brexit: the UK will need to renegotiate at least 759 treaties, Finan‐ cial Times [online], (30 May 2017), https://www.ft.com/content/f1435a8e-372b-11e7-bce4 -9023f8c0fd2 e, last accessed 13 March 2018; for the benefits of EU Trade Agreements see Christian Salm, Benefits of EU International Trade Agreements, European Parliamentary Research Service Blog, (27 October 2017), https://epthinktank.eu/2017/10/27/benefits-of-e u-international-trade-agreements/, last accessed 13 March 2018. Ian Forrester 237 for EU Member States. These negotiations might yield for the UK better access to such countries’ markets than the EU had obtained, or, possibly, worse access. And, of course, the concessions made to the third countries in terms of access to the UK would be a matter for negotiation. Customs formalities affecting the importation of goods by road would need to be addressed. It is expected that there would be a five-fold increase in customs declarations. Today 99% of export declarations are cleared in 20 seconds. A very high percentage of exports and imports are to and from the EU27. Third-country trade takes longer. Some industry pessimists fear that a two-minute delay in pro‐ cessing a truck at the port of Dover, which handles some 10,000 a day, will lead to queues over 20-kilometres long. Pessimists are generally wrong, but maybe not entirely wrong. Persons: Mutual recognition of qualifications; and families Directive 2005/36/EC establishes the general legal framework for cross-border recognition of professional qualifications, based upon the principle of mutual recognition. Thousands of UK citizens work in the EU27 under their home-coun‐ try titles. A UK pilot flies from London to Frankfurt with a UK-issued license under European Aviation Safety Agency rules. UK auditors, chartered accoun‐ tants and bankers are professionally active across borders.30 An English solicitor advises clients in Brussels under her own professional title. Thousands of EU27 nurses, pharmacists and doctors work in the UK and vice versa. Some 6% of the NHS workforce nationally, and 10% in London, are EU nationals. Around 33% of architects in London come from the EU27. Common sense would suggest that UK qualifications should be recognized in the EU27, and EU27 qualifications in the UK. After 44 years of the free movement of persons between Member States, it is estimated that 4 million expatriate people (UK citizens in EU27 and EU27 citi‐ zens in the UK) are affected, indeed threatened, by Brexit. London is now home to something like 300,000 French citizens. Figures for 2015 put the number of Polish citizens living in the UK at 916,000,31 and the number of Irish citizens at 30 House of Commons, Ch. 4 Professional Business Services, in: Brexit: Trade in Non-finan‐ cial Services, 2017, https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/135/1 3507.htm, last accessed 13 March 2018. 31 Office for National Statistics, Population of the UK by Country of Birth and Nationality: 2015 [online], (25 August 2016), https://www.ons.gov.uk/peoplepopulationandcommunity /populationandmigration/internationalmigration/bulletins/ukpopulationbycountryofbirthan dnationality/august2016#statisticians-quote, last accessed 13 March 2018. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 238 332,000.32 It is estimated that approximately 181,000 EU nationals live in Scot‐ land.33 I know personally many people who are considering taking another na‐ tionality or who are unsure how to plan their lives because of Brexit. Some coun‐ tries do not permit dual nationality (I am told that Austria, Spain, and the Nether‐ lands are examples, and Germany accepts it only for EU/EFTA citizens), which means renouncing UK nationality, thus presenting a risk at the end of a career to return to the UK. A separate set of concerns is that the UK citizen in, say, Lux‐ embourg would be free to supply services there, but not in another Member State. I have lived as an alien in a foreign country. Dealing with the business of resi‐ dency and visas can be a worrying experience or even quite miserable. Requiring to depend on a sceptical official’s approval of whether you can stay, where you can work, and what papers and what other proof you need – these are real bur‐ dens. They are worst for the poorest, the least educated, and the less confident. This is not the place to describe in great detail all the problems being debated. What is certain for present purposes is that tens of thousands of ordinary people, in complete good faith, are worried about their professional and personal futures. The numbers are very large and the concerns seem understandable. Once again, there is an immense amount of work to do. A political and human scandal has recently emerged, concerning the treatment of Caribbean immigrants who arrived in the UK before 1973. Although they had arrived legitimately in England and had attended primary and secondary school there, when challenged to prove the legitimacy of their residence thirty years lat‐ er, they were unable to do so. The Home Office had destroyed paper copies of their “landing” documents, which would have confirmed their legitimate status, and proceeded as an official policy to create a “hostile environment” to these whose papers were not in order. Measures included removing driving licences and the right to NHS medical treatment. A number were in effect deported and at least one died of allegedly untreated cancer. The subject is properly and genuine‐ ly sensitive. The implications of the scandal for other foreign people who have long been resident in the UK are troubling. I very much hope that the negotiating parties will come to a conclusion that is worthy of each of them. Of course, there are not going to be mass deportations, but I suggest that the ordinary worries and problems of ordinary people who would no longer have a constitutional right (or might have retained only a part of it) deserve to be weighed carefully against the governmental advantages to be gained by renounc‐ 32 Ibid. 33 Nicola Hudson / Andrew Aiton, Financial Scrutiny Unit Briefing – EU Nationals Living in Scotland, Scottish Parliament Information Centre (SPICe) (Edinburgh: SPICe, 2016), http://www.parliament.scot/ResearchBriefingsAndFactsheets/S5/SB_16-86_EU_nationals _living_in_Scotland.pdf, last accessed 13 March 2018, p. 3. Ian Forrester 239 ing or removing those rights. There is a great difference between a right and a right to ask. Devolved Administrations In the Queen’s speech delivered on 21 June 2017, a pledge was made to consult and work with the devolved administrations in Wales, Scotland, Gibraltar and Northern Ireland. A special Joint Ministerial Committee was established for EU negotiation (JMC(EN)). The relevant Memorandum of Understanding says that there are ‘no legal obligations between the parties’ as it is ‘binding in honour on‐ ly’. The Scottish Government is stating that ‘the UK as a whole should remain a full member of the Single Market, through the European Economic Area, as well as the Customs Union’.34 The difficulties of reconciling the interests of Scot‐ land’s population, which voted to remain, with the time-bound process of the Brexit negotiations are obvious. Ireland, Gibraltar, and Wales present a variety of different questions. I record this as a political matter which presents a number of difficult constitutional problems, in addition to the technical difficulty of the un‐ settled items I have mentioned. The conduct of discussions on these topics is for civil servants, diplomats, and political leaders. That is obvious. There are very great challenges to be addressed by the UK government, the devolved governments, the civil service, and the EU. I would add, as a citizen, a parent and a judge, that the subjects are of immense importance and they affect the interests of literally millions of people. I sum‐ marise: we should acknowledge the difficulties, the number of topics to be re‐ solved, and the impossibility of not addressing them. It would be a grave matter if they were not settled by carefully drafted texts, drafting which may take a long time because the questions are very complex and difficult, both legally and institutionally. The need for moderation My last point, concerning the discourse of Brexit, is more philosophical. Let us all pursue these matters with proper moderation. Nationality has never exactly matched predictable categorisation on the basis of political frontiers in Europe. In Nelson’s fleet at the Battle of Trafalgar in 1805 there were 28 nationalities. Education, training, falling in love, and economic aspiration are each well-recog‐ III. 34 Scottish Government, ‘Scotland’s Place in Europe’, (Edinburgh: December 2016), https:// www.gov.scot/publications/Scotlands-place-erope/, last accessed 9 September 2019. Disintegration of Legal Systems and Jurisprudence on Shared Matters Brexit 240 nised incentives to travel. The constitutional architecture of the EU is creaky and there are plenty of imperfections: the democratic deficit has been criticised fre‐ quently. The European public cannot by a vote reject the Commissioners. Regu‐ lating is indeed very complicated. There is no opposition and no government in the European Parliament. But the achievements of the four freedoms have been immense. The elimination of military rivalry in Western Europe and the bringing down of the Berlin Wall were massive events for which ‘Europe’ can claim much credit. Young people can now regard it as their right to move in search of study, taking a job, opening a business, or building a family. Europe is the only place on earth today where (almost) a continent of states has agreed to deliver access to healthcare, equal treatment of men and women, safe and healthy goods and workplaces, a pension, education, and democratic values, not only to their own native citizens, but also to those of other states. There is a great burden upon the negotiators to deliver a result that preserves Europe’s values. The UK’s 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, journalists, teachers, and bloggers to avoid the temptation to exaggerate, to polarize, to mock, and to accuse. The seriousness of the challenge deserves better. It is unhelpful to say ‘Just leave!’ as if we were resigning from a golf club because we dislike the new committee or the dress code. We should not pretend that the issues at stake are simple. Plainly they are not. Winning something should not be the goal. We should have learned by now from history that bad treaties and unrealistic treaties might not survive crises. So let us all calm down, breathe deeply, reproach zealots, and encourage sensible discourse. Ian Forrester 241

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Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck