With a distinguished leader and a sympathetic audience, we who favoured staying in won the day. The key argument supporting an EU exit, from an English law perspective, was that the UK would regain control over its own law. EU law, it was said, is hard to change.
There is, of course, merit in that argument, but it overlooks the influence that the UK has had on EU law over the past 40+ years, and the influence that the Government and indeed stakeholders such as the Bar, can and do exert in shaping EU law, thus helping to ensure that most of it does not actually need much changing. The views expressed below in exploring this perspective are personal.
Influence of English law on EU law
Examples abound of the influence of English law and our legal system on the EU. Much of the EU’s legislation in the areas of financial services and employment law were modelled on English law. The EU’s anti-discrimination and competition rules will look familiar to common law lawyers. In the areas of judicial cooperation in civil and criminal matters, it was the UK that introduced the idea of mutual recognition in preference to harmonisation. For cross-border cases, EU measures such as the European Small Claims Procedure and Alternative Dispute Resolution have created a more level playing field, encouraging the introduction of such procedures in Member States that, unlike ours, hitherto did not have them. The EU will soon reconsider collective redress, another area where English lawyers could draw on first-hand knowledge to shape the debate.
In the criminal justice field, EU measures for mutual legal assistance by law enforcement authorities and legislation establishing minimum defence safeguards, all draw on English law, resulting in the raising of standards in certain other Member States.
English law and our legal system have also exerted positive influence on the Court of Justice of the EU (CJEU). The majority of EU legislative acts are not litigated before the CJEU, but national courts do have recourse to it for interpretation of EU law. English courts regularly use this procedure, and the UK is quick to intervene in cases affecting UK interests. Both the English judiciary’s contribution to EU jurisprudence, and the excellence in oral advocacy that the Bar displays in proceedings before the Luxembourg courts, are widely acknowledged and respected.
The Bar’s influence
Indeed, the Bar itself has enjoyed a certain influence on EU law, establishing itself over the past 15 years in Brussels as an honest broker on many topics. Through responding to EU consultations and otherwise inputting our expertise at EU level, the Bar’s EU representation/EU Law Committee has played a central role in shaping, or as is sometimes necessary, discouraging, the development of several high profile EU measures. Examples include the European Arrest Warrant, the Services Directive, long-running files such as European Contract Law (on which we take some credit for the fact that, after 14 years, no EU measure has been adopted), the Mediation Directive, private international law instruments such as the Brussels I and IIa regulations, Criminal Safeguards measures; and Public Procurement. Maura McGowan QC, when Chairman of the Bar, was the only practising lawyer on the speaker list of a major Commission-led conference on the future EU justice agenda.
Of course, sometimes the Bar’s lobbying is necessarily negative. But it has provided a useful brake and often welcome element of pragmatism into the EU debate, for example, in calling the Commission to account on its sometimes expansive use of Treaty legal bases.
Is the UK in danger of losing that influence?
In the 20+ years that I have been in Brussels, English has become the dominant working language. In other ways, however, UK influence in Brussels could be said to be waning. Some dilution inevitably followed recent EU enlargements, but there has been a perceptible and arguably avoidable decline in the past four years or so, unnecessarily damaging UK interests, whether or not we remain in the EU.
One of the influential factors in the legal field is the UK’s exercise of its Protocol 21 Treaty on the Functioning of the European Union (TFEU) opt-in to civil and criminal justice measures. This was a clever exception written into the Treaties by the UK and Ireland, whereby they can choose whether or not to take part in an individual civil or criminal justice measure. The UK used that discretion wisely for a long time, but in recent years, the frequency, and as some see it, apparent arbitrariness, of its non-opt-ins has led EU officials and other Member States to assume that it will not opt in, and thus be less inclined to take English law interests into account.
A useful illustration: several years ago a suggestion by the Bar to create an EU-level Mareva-style injunction was taken up by the European Parliament, eventually leading to the 2014 regulation creating the European Account Preservation Order. Unfortunately, the Commission proposal did not contain adequate safeguards, so the UK decided to not opt-in from the beginning. Given that other Member States knew that the proposal was UK-inspired, it arguably could have led from the front in negotiating the necessary changes. The resulting regulation now contains a recital discriminating (possibly unlawfully, but it is yet to be tested) against UK litigants. The UK has also not opted in to the EU’s Justice Programme for 2014-19, effectively excluding stakeholders such as our Bar and judiciary from benefitting from EU funds for training in that field.
The expectation in Brussels that the UK will not opt into EU justice files has grown, not only on the civil side, but also on the criminal. Indeed, we have opted into only two of the six EU proposals safeguarding defence rights, despite English law being seen as the benchmark in that area. In practice, many of the new rules would make little difference to English law. But a UK non-opt-in gives a negative message to other Member States, some of whose standards may not match our own. It also limits UK scope to improve the texts during the legislative negotiations.
Some readers will have followed last year’s Protocol 36 criminal justice block opt-out debate. The Bar was among many expert stakeholders that favoured no action, allowing the UK to continue to benefit from the 35 EU measures of value from the list of 130 affected, and ignore the rest. Nonetheless, the block opt-out was exercised, and two years of costly and time-consuming work and negotiation followed, ultimately bringing little added value, but with a potential loss of goodwill.
There are, of course, other areas of EU competence where the UK has carved out exceptions, notably the Eurozone and certain aspects of financial services and the Schengen Agreement. This “lucky dip” approach to EU membership, particularly when accompanied by continued dissatisfaction, can cause resentment.
All this signals a potential problem for English law, and by extension, English lawyers. If UK influence were to diminish significantly, EU law may well develop in ways that do not suit us.
Does any of this matter? We might be leaving anyway
The Government’s two-year long Balance of Competences review, completed late last year, critically examined 20+ sweeping areas of EU competence. The Bar contributed in writing to nine of the calls for evidence (see: http://www.barcouncil.org.uk/about-us/what-is-the-bar-council/the-brusse...). The resulting responses and reports amount to a valuable resource, the bulk of it supporting the status quo, but pointing out, as did we, where problems lie. This exercise is seen as authoritative in Brussels. It is to be hoped that the material will be given a balanced public airing as the debate on the UK’s relationship with the EU intensifies.
Other Member States share some of the UK’s concerns about the EU, with some even carrying out similar exercises. The EU institutions themselves are striving to become more transparent and accountable, focusing now on growth, prosperity, reducing the regulatory and administrative burden, encouraging e-commerce and putting in place the safeguards needed when things go wrong. The new Commission, in post since last October, has reorganised itself, and is placing greater emphasis on the principles of proportionality and subsidiarity, so that the EU only acts if no lower level action could achieve the desired result. It remains to be seen, but the signs are encouraging that calls for consolidation, simplification, doing less and doing it better, have been heard.
The House of Lords EU sub-committee has since produced reports on two of the main topics that I refer to, on both occasions supportive of the line taken, regarding the use of the Protocol 21 Opt-in, and on the Balance of Competences review.
BREXIT: key legal issues
There is not the scope in this article to explore the pros and cons of a UK EU exit, and indeed it may seem odd to even consider one in light of my last two paragraphs. Nonetheless, I shall highlight a few key legal issues, perhaps to be developed on another occasion. On any view, the EU will remain the UK’s main, or a major, trading partner, and the UK would seek favourable trading status. The Swiss and Norwegian models, even if available, give minimal influence to those countries. On the wider trading stage, the EU currently negotiates on behalf of the 28 Member States as a block. WTO Member trading partners could make any attempted withdrawal from the EU difficult, as well as being able to undermine both subsequent negotiations for favourable status with the EU, and any bi-lateral third country trading agreements the UK might seek (Dr Andrew Lang, LSE, The Consequences of Brexit: Some Complications from International Law, 2014).
EU withdrawal equals, at least for a while, legal uncertainty. Lawyers may thrive in the short term, but it is certainly arguable that UK inward investment could suffer from uncertainty about trading terms with the EU, applicable employment laws or intellectual property protection, or the EU’s competition analysis when the UK is the critical market. In the criminal field, with the UK no longer party to the EAW, EU Member States might refuse to extradite their nationals to the UK. And EU Member State courts could refuse to recognise English judgments if the Brussels I Regulation no longer compels them to do so. These and many other provisions would have to be renegotiated, against a negative backdrop.
Then there are the many trans-national challenges for which a pan-European approach is needed, including protecting the environment and fighting organised crime, trafficking, and terrorism. And even the UK’s status as the world’s dispute resolution venue of choice cannot be taken for granted. Other countries are augmenting their own facilities, and some third countries may move away from common law models, towards, perhaps, EU ones?
The UK’s future prosperity is inextricably linked with the EU, whether in or out. The EU is not perfect, but other Member States and the institutions themselves understand this and are making efforts to improve it. Surely then, it is better for the UK, and the Bar, to remain positively engaged in that process, from within, to enhance and improve EU laws and function and maintain our influence thereon.
Contributor Evanna Fruithof
Consultant Director, Bar Council’s Brussels Representation