Brexit and the Common Law

August 7, 2019 Updated: August 22, 2019


There was one statement that gave me the biggest insight at this year’s weeklong meeting of Southeastern Association of Law Schools (SEALS), an annual conference of more than 700 professors from 100-plus member and associate member law schools from across the United States and several other countries.

Under common law systems, judges apply legal precedent based on court rulings, so the law develops on a case-by-case basis. The common law’s roots go back, as I say in my classes, to “Jolly Old England.” Judges would record their decisions, and they, in turn, would become precedent for future cases. British colonies in North America followed this practice and adopted existing British case law as precedent.

As American territories became states, they enacted “reception statutes” that made British precedent applicable in the new American jurisdictions. Even Louisiana, which primarily drew on the French civil code rather than British common law, had a partial reception statute. Other former British colonies, including Ireland, Australia, and Hong Kong, did similar things.

Today, certainly in the United States but also in other common law jurisdictions, a great deal of law comes from legislatively crafted statutes. The legislature writes laws, the executive enforces them, and the judiciary interprets them. Behind all of this, however, is a reliance on court decisions to interpret and explain those laws. While American, Canadian, and other litigants typically look to recent precedent from within the relevant jurisdiction, judges have long built upon the logic and reasoning from England (or other common-law jurisdictions) to fill in the gaps as they grapple with difficult laws.

The problem with British case precedent of late has been that its courts have not been dealing with unambiguously British common law. Courts in the UK have been under the larger umbrella of EU law.

The UK joined the European Economic Community (as the EU was then known) on Jan. 1, 1973. The applicable legislation from the EU side was the 1972 European Communities Act (ECA), which established EU law as having binding effect within the UK.

According to an explainer from UK think tank the Institute for Government, the ECA also said that when the interpretation of EU law was in doubt, UK courts had to defer to the judgment of the Court of Justice of the European Union (CJEU). Moreover, all primary legislation enacted by the UK Parliament after the 1972 Act was subject to the requirements of EU law. That meant that UK court proceedings were required to interpret UK legislation consistent with the purpose of any underlying EU law and strike down domestic legislation that was inconsistent with EU law.

The UK surrendered a significant degree of sovereignty to the EU. This was made quite clear in a 2002 British court decision, Thoburn v. Sunderland City Council. Issued by the Divisional Court, Queen’s Bench Division, this case recognized the supremacy of EU law over domestic British law. Writing for the Court, Lord Justice Laws described the ECA as a “constitutional statute.” To get out from under it, Parliament would have to repeal it expressly. Since Parliament had not done that, the EU law held higher status than British law. The UK has operated with this understanding of its law ever since.

The EU began as a treaty-based organization, intended to integrate various activities (primarily economic) among the member states, but it has grown in importance and influence over the years. In fact, the EU legal system today has many features reminiscent of U.S.-style federalism.

Three branches of government, the European Commission (the EU executive branch), the European Parliament, and the Court of Justice of the European Union, are supranational organs with interests that go beyond those of individual EU member states. The EU has also promulgated a Charter of Fundamental Rights, and it spurred debate over, if not recognition of, pan-European citizenship. Nineteen of the EU’s 28 member states (not including the UK) have entered into an economic and monetary union with a common currency (the euro).

Canada isn’t a member of the EU, so its laws aren’t subject to EU laws. As a common law state, its courts formerly looked to British cases for logic and reasoning. However, with the EU umbrella cast over the UK legal system since 1973, those court opinions aren’t logical legal precedent in Canada, the United States, or other non-EU common law countries. That’s what my Canadian colleague pointed out as a positive outcome of Brexit, so that Canada would once again have England as a source for its common law.

The UK currently has a large number of domestic laws that have emanated from the EU. The British government has announced that it will introduce a “Great Repeal Bill” with the intention of repairing its domestic legal system. It will freeze EU law’s impact on the UK where it stands at the moment Brexit takes place (giving Parliament the authority to decide which elements to keep or repeal), and it will authorize changes to be made to the laws that no longer make sense after Brexit.

The hope is to abide by the Thoburn v. Sunderland City Council case but avoid the uncertainty that would take place if all EU-derived law simply were repealed without replacement.

Cases that were decided during the period of time when EU law guided UK courts in their interpretation of British law might remain tainted as far as common law precedent goes, but new court decisions would once again be able to serve as precedent in non-EU common law jurisdictions. A difficulty may fall on Ireland, however, which plans to remain part of the EU even as the UK leaves.

According to The Irish Times, Gerard Hogan, a former judge of the Irish High Court, said that there will be “very significant pressure” on Ireland to become part of a homogeneous EU civil legal system after Brexit. The consequence might be to pull Ireland away from its common law roots. The legal systems of Ireland and the UK have been closely linked for centuries, but this might “change fundamentally” after the UK leaves the EU. Additional problems might also develop between Ireland and Northern Ireland, which plans to leave the EU along with the rest of the UK.

Another looming issue is how EU parties will deal with British law. English common law is often designated as the controlling law for financial contracts, even for parties in EU states that don’t follow the common law. That language will continue to control the agreements, but British courts are unlikely to handle the litigation. As such, some continental courts will need to make judicial decisions based upon legal precedent that is outside of their previous experience. That could create some difficulties.

Like many Americans, I’ve been wondering what kind of details need to be worked out before the UK can leave the EU. The impact on the common law is but one aspect of Brexit, but it’s a complicated one. I’m watching with interest to see how it unfolds.

Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.