Brexit – most complex legal issue in history?

With massive Brexit changes afoot, we look closer at what experts are calling the most complex legal issue in recent history.

The Brexit changes have still got legal minds running; the Lord Chief Justice of England and Wales, Lord Thomas, considers that leaving the EU is likely to be the “most complex” legal issue in recent history.

The fact that English law is no longer certain and it is considered that the UK is no longer a safe forum to bring disputes is worrying litigants; what happens to judgements which may no longer be enforceable in the European Community? There is an air of uncertainty circulating around such matters, and the task of overhauling large parts of domestic legislation, post-Brexit, is a huge job and one which is fraught with complexities say the country’s most senior judges.

Some might say that now is a good time to test cases at domestic level because once Brexit is implemented properly when the UK leaves the EU in 2019, the risk is that judges will be asked to decide cases against the background of Parliamentary uncertainty about how the law should look.  This could mean that there will be a clear removal from the current principle that similar European cases are judged in the same way.

Whilst the concept of sovereignty does protect the UK’s ability to shape its own laws – a fundamental principle underpinning Brexit – the risk is having to decide whether Britain wants a complete overhaul of the laws, or whether there is instead a large scale harmonisation that falls in line with current EU regulations. Lord Thomas has also called for the Law Commission – an independent body that is responsible for keeping laws under review – to be given a bigger role after Brexit to try to disentangle highly technical areas.

There are also governmental plans to pass the Great Repeal Bill and to transfer EU legislation into UK law. Even if this is passed, parts of the law will still be subject to extensive amendment from Parliament and in some other areas more minor changes will inevitably be made.

It is expected that the judiciary will have to answer legal questions that arise in the context of disputes because of gaps or uncertainty in the legislative provisions contained in the so-called secondary legislation enacted by the UK Government – to alter UK law after Brexit.  Such legislation has the potential to cause real problems; Lord Thomas states that as much as possible should be done to reduce the likelihood of judges being dragged into the political arena by requiring them to make decisions in areas that have political application.

There is a growing consensus that the courts should have no interest in being drawn into political decision-making, and that the courts should not be used as the forum for sweeping away dust that should have been removed during the Brexit ‘spring clean’. These sentiments have been echoed by comments made by Lady Hale, Deputy President of the Supreme Court, who said “it should be made plain in statute what authority or lack of authority, weight or lack or weight, is to be given to the decisions of the Court of Justice of the European Union after [the UK has left the EU]”.

With the above said, new Justice Secretary, David Liddington, sees that the decision to leave the EU will allow our domestic legal profession to showcase why businesses should “choose the UK” for legal services. In a speech at Mansion House in early July 2017, he said: “I want to seize the opportunity to project our English law, our courts, our judges, our legal services to the world and to new markets.”

Whether this is hopeful optimism or a standard destined not to be attained remains to be seen but one thing remains certain; if Brexit is to be a success, then the hard work by law makers must start now.

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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2017.