Legal Cheek

Top ex-judges reunite to help parliament fix Brexit mess

Cream of retired legal crop agree future of ECJ is a big problem

Left to right: Lord Neuberger, Lord Thomas, Sir Konrad Schiemann and Lord Hope

Hearing a quartet of some of the most important former judges grapple with the United Kingdom’s future relationship with the European Court of Justice (ECJ) has made it ever more clear that Brexit is very, very complicated.

Gathered in the House of Lords’ third committee room at 11:15am this morning were former Supreme Court president Lord Neuberger, former Lord Chief Justice Lord Thomas and former UK judge turned ECJ judge Sir Konrad Schiemann. Lord Hope, the former Supreme Court deputy president, popped in about 40 minutes later, apologising he’d been “being entertained elsewhere”.

The task at hand for this ensemble of retired judicial brainpower was to assist the Lords’ Justice Sub Committee, part of the select committee on the European Union, better understand the ECJ’s post-Brexit jurisdiction.

Led by Doughty Street Chambers barrister Baroness Kennedy of the Shaws, the Committee is home to its fair share of lawyers. Lord Gold, for example, is a former senior litigation partner at Herbert Smith Freehills, while Baroness Shackleton of Belgravia used to be a Farrer & Co partner. Lord Lester of Herne Hill, Baroness Ludford and The Earl of Kinnoull are all barristers.

With all that legal brainpower in one room, you’d be forgiven for thinking chatting about the ECJ would be a Tuesday morning treat for the 12-person Committee. Wrong.

The ‘this is going to be complicated’ klaxon was sounded within minutes of our arrival when Kennedy went right back to basics and opened the session by reminding those in the room (and those watching via parliamentlive.tv at home) the distinction between the different European courts. Human rights are largely the preserve of the European Court of Human Rights (ECHR) in Strasbourg which, though relevant, was not the subject of the session today. The ECJ’s raison d’être is the maintenance and interpretation of EU law. Schiemann, the only judge in the room with experience of sitting on the ECJ, stressed that while there was sometimes an overlap, “the courts are keen not to stand on each other’s toes”.

One thing the ECJ and the ECHR do have in common, though, is their ‘meddling nature’, some strands of the press would say. Kennedy believes this is a big misconception. Echoing the comments she made during a Legal Cheek interview, Kennedy said the UK had, in fact, played a “very important” role in developing European law. When asked by Kennedy if he agrees, Lord Chief Justice turned arbitrator Thomas replied:

“Of course! Most European lawyers do recognise the importance and influence of our law and our legal methods.”

How we maintain that influence is a big point of contention. Thomas finds it difficult to believe we alone, sandwiched between major influencers like the United States and the EU, could be a big player in legal development.

Moving on, the panel of judges were asked for their views on: the most workable alternative to direct ECJ influence over UK law; the possibilities of a new international court structure; the continuing relevance of instruments such as the European Arrest Warrant; and the future of the Brussels Regime (which enables citizens to obtain orders that are legally binding abroad).

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It sounds like an EU law exam from hell, but take solace in the fact even the panel of top judges couldn’t find the answers. Thomas said to the Committee:

“Every question you’ve asked us is very complicated! Unless you think things through carefully… you pay for it very heavily in the end. The sort of questions you’re asking are the right questions… [But] the difficulty a committee like this faces is the time pressure, with only just over a year to go [until the two-year limit set by Article 50 expires].”

With Neuberger conceding that “there are so many uncertainties at the moment”, a number of issues were placed by the ex-judges into the metaphorical “difficult box”. The Committee, though no doubt thankful for Neuberger, Thomas, Schiemann and Hope’s contributions, seemed flummoxed themselves at times. “Goodness, it’s complicated!” Lord Cashman exclaimed at one point, while Baroness Neuberger — who just so happens to be Lord Neuberger’s sister-in-law — told the former judges: “It’s great having you here, but I don’t think you’ve made our task any easier!”

Screenshot via Parliament TV

There were, however, some lighter moments. Everything became a bit awkward when a whole class of teenage students filed their way in at about 12:30pm to observe, many forced to stand alongside the Committee members.

And then there was Schiemann’s laughter-inducing discussion on the EU Charter of Fundamental Rights.

When asked by Kennedy if he thinks the potential loss of the Charter would be significant, he sought to explain the wide range of citizens affected by the document. He, aged 80, admitted the rights covering old people have become increasingly interesting to him of late, Kennedy giggling: “to us all!” Committee members range in age from a sprightly 54 to 82, and boast an average of 67 years. While Schiemann spent time discussing the elderly’s Charter right to engage in social activities and how this may impact his right to his local bingo club, I couldn’t help but notice a number of walking sticks resting behind the Committee tables.