I was asked, when I told my friends in London
at a conference I was at yesterday that I
was coming to Birmingham, I was asked ‘are
you going to be speaking to the Conservative
Party conference?’ and I said ‘no, I don’t
think so. I’m going to be speaking to a
much more open and lively and vigorous audience
and one that is less sceptical about certain
things’.
So I’m going to do three things now. One
is remind us where we are and how we got here.
I understand that for most of you this is
your first lecture in European Law so I offer
you my profound sympathies and regrets, but
I’ll try to make it as painless as possible.
Secondly to list a number of things which
are necessary to be settled before we can
do Brexit safely, if we do it. And contrary
to Professor Trebus I’m not yet absolutely
convinced. And third, I want to make a plea
about how we should have the discussion.
So our continent at this moment is going through
a period of extraordinary turbulence. You
know very well that the pressure of migration
from the East, the pressure of migration from
North Africa, the Trump presidency, the emergence
of so-called nativist populist parties in
different countries, present Europe with an
extraordinary set of exceptional challenges.
So Brexit for the UK is the biggest of those
challenges and Brexit presents for the British
government and British citizens and British
residents, the biggest challenge I guess since
the end of the Second World War, to how we’ll
govern the elemental, fundamental questions
of how this country shall be governed. Now
Brexit, if it occurs, will represent what
an English judge has called a ‘seismic shock,
a truly revolutionary change’. Now at times
in revolutions, though not so much in the
UK – in France, in Germany and in other
places – revolutions are associated with
bloodshed. Let me just give you a wee bit
of reassurance. We go back to 1560, before
you were born, and in 1560 there occurred
in Scotland the Reformation and that was a
religious movement but also a political one
and by an Act of 1560, the jurisdiction of
the Pope was rejected and the Saying of the
Mass was prohibited. But, Canon Law was retained.
Canon Law was drafted in Rome and that dealt
with divorce, wills, relations between parents
and children, relations between husband and
wives, and as it was stated, ‘this pontifical
Law extended to all persons and things relating
to the Roman Church and so deep has this Canon
Law been rooted, that even where the Pope’s
authority is rejected, yet consideration must
be given to these Laws’. In other words,
the Laws made sense and they were familiar
to people and so they were not discarded,
even though Papal jurisdiction was discarded
and rejected.
Now, life muddled through. There was a bit
of confusion but life continued and the Canon
Law continued. Now if Brexit happens, it is
not the case that mobs of iconoclasts will
come into the library and burn all the books
with 12 yellow stars and a blue background.
It is unlikely that Professor Trebus and myself
will be carried out to the nearest lamppost.
Violence is not probable but there will be
some big changes. Now I’m speaking in an
academic environment, my views are my own,
I am a judge, I am not speaking for the court,
I’m not speaking for the Daily Mail, I’m
sharing academic ideas to a bunch of lively
and enquiring minds. That having been said,
let me emphasise that it’s not for judges
to make political decisions. We’re not paid
to decide whether it’s a good thing or a
bad thing to a do a Brexit. Most young people
will have a particular view with which perhaps
I might personally sympathise, but judges
are allowed to comment on legal problems which
need to be addressed and things which, questions
which require proper attention.
So I’ve got these three things I want to
address. One is where we are today and why
that’s relevant to Brexit. As I describe
that I think you’ll understand and let me
begin with that.
Since January 73 the UK has managed its domestic
government in cooperation with its European
partners in an increasingly wide range of
fields. So originally there were 8 partners;
today there’s 27. Originally it was mainly
to do with trade and persons. Today it’s
a vast range – agriculture, animal health,
environment protection, deportation and extradition,
equality of remuneration between men and women
in the workplace, zoonotic diseases, aviation,
hazardous chemicals, mutual recognition of
judgements, mutual recognition of qualifications,
and so on. So the list of areas where the
UK cooperates with its continental neighbours
is a vast one and that vast area is consistently
underestimated by those who say ‘let’s
just do Brexit. Let’s just leave’, as
if it were a tennis club and the showers were
not clean enough, or the subscription was
too high. It is very, very, very much more
complicated than that. Now Lord Cofield who
was the father of the 1992 programme, British
Commissioner, a Thatcherite Minister and a
revolutionary thinker, he said that ‘sovereignty
was like energy. It could change its shape
but it couldn’t be destroyed’. So he espoused
the notion – and he convinced Mrs Thatcher
who was no easy cookie to convince – that
Britain’s destiny in Europe lay in pooling
its sovereignty and using the ability of the
Civil Service and British skill in drafting,
and common sense, to produce standards which
would make sense for the European Community
and then the European Union.
So, today pre-Brexit, these questions are
more and more complicated because life is
more and more complicated, because the dangers
of, for example, food safety – you’ve
read in the news of the poor woman who died
because of an allergen. Now, these things
are extremely serious. They can be matters
of life and death. So how are these standards
set? Well, let’s assume that we’re talking
about something for animal feed. There are
many products which are given to animals to
keep them healthy and to ensure that the prosper
and that the farmers can make money out of
selling them for consumption. A new product
is discovered. Is that a good one? Is it safe?
Is it efficacious? Same for pharmaceuticals.
The pharmaceutical industry is constantly
looking for new products. The European Medicine’s
Agency is one of about 35 agencies which are
scattered all over the European Union and
those agencies participate in the elaboration
of new standards, and so those agencies are
staffed by permanent officials and by experts
from the member states. So the best veterinary
medicine person or the best epidemiology person
or the best antibiotic research person from
Estonia, comes to meet his or her colleagues
in London – if it’s medicines – to discuss
a new candidate to be proved as the new antibiotic.
Now because of geography, cooperation is essential.
That’s to say we can’t – well, it wouldn’t
be convenient to have a world where one standard
applied in the UK and another standard applied
in the 27. Technically feasible but not very
convenient. For example, supposing the pesticide
Glyphosate which is called Roundup were deemed
to be unacceptable in the 27 but acceptable
in the UK – a possible outcome if there
are two different standards. A British farmer
who used that herbicide would discover that
the farmer would not be able to export her
crops or meat to the 27. So there is an evident
linkage between the UK and the 27. So the
agencies who elaborate new standards are in
constant flux as to the products which they
approve. Now you’re saying to yourself maybe
why is this so important? It’s because daily
life is governed by many, many, many standards.
When you go into the butcher’s, when you
go into a supermarket, when you go into a
restaurant, when you get into a car, when
you wear a judo suit for a judo competition,
you are governed, or you use, or you rely
upon, the existence of standards which guarantee
– or should guarantee – the quality of
the product which you purchase or use or consume.
The range of topics can be very, very large
and I can offer you two or three examples.
One, is a bathroom tile made by DuPont a filled
plastic or an artificial stone? For customers’
purposes it means 2.5% of customs duty difference.
Is a phthalate, which is a plastic plasticiser
that softens toys to be chewed by babies,
are phthalates dangerous or neutral? Should
they be prohibited? Should they be permitted?
Now there are dozens and dozens and dozens
of standards, dozens of ongoing questions
and controversies about these matters. Now
regulation is an ongoing process. Science
and industry, we’re in the chemistry theatre,
science and industry keep discovering new
things and of course they should. So what
to do about – let’s assume that Brexit
occurs, contrary to my wishes, that’s an
unjudicial statement but with which I suspect
a fair number of you might sympathise – Brexit
occurs. Now, how is the UK to deal with the
necessity of extensive legislation and regulation
while respecting the concerns of those who
feel Brussels is interfering and obtrusive?
Now, the proposal is, it is estimated – I
haven’t done it but the BBC has done – that
there are 90,000 texts which constitute the
corpus of European Law today and some of these
are trivial, some are important, some may
have been repealed, but think of that as a
mass of wires with yellow stars and a blue
background. Now the UK solution to the problem
of wishing for reasons of sovereignty to leave
the European Union, the British solution is
to take this bundle of wires – those are
my words, my analogy – and plonk them into
a bath of Britishness which this bath has
got the Union Jack on it, the British flag,
and those texts will become identically worded
to the European texts but they will have been
adopted by a UK Minister, and so that may
solve contribute to solving the sovereignty
problem.
Now, the goal of the communings between experts
and technical agencies scattered all over
Europe and member state governments and lobbyists
and scientists, the goal of these communings
is to produce a Europe which is safe, which
is prosperous, which rewards innovation, and
which doesn’t completely eliminate risk
but which makes sensible choices where there
has to be a balance. Now, as part of the withdrawal
arrangements – as I said, the idea is that
the tens of thousands of European texts be
rebranded, but not reworded, as UK texts.
So the farmer, the doctor, the pharmacist,
the engineer, the owner of grassland, will
be governed after Brexit as before Brexit,
by the same set of technical norms. But, technical
regulation continues so the day after Brexit
a new product emerges and the new product
has to be approved because we can’t imagine
that food or animal feed would be dosed with
a new unknown product which has not been tested.
How shall the United Kingdom’s experts and
the 27 experts cooperate? Big question. The
current version of the proposal is that there
would be what’s delicately called ‘a common
rulebook’. What does a common rulebook mean?
We don’t at the moment know but it probably
means that the same standards would apply
on both sides of the English channel.
So the UK will have three choices. One will
be set up a UK agency which will decide for
the UK pharmaceutical, animal health, chemical,
environmental, standards which might be different
to those of the 27, but if they’re different
to the 27, then the benefits of the European
market are lost. Or, not regulate – probably
unlikely – or simply follow the standards
set by the EU 27 without having a technical
or political influence on the drafting of
those standards. So 
I repeat, one of the great challenges which
will be permanent for as long as there is
a bath of identically worded in origin legal
texts governing technical regulation of our
daily life, but this one, the European one
is changing because of technical progress
but this one isn’t, for so long as that
phenomenon persists there will be uncertainty.
Now that presents the possibility of considerable
constitutional conflict.
Now, let’s pass on to the issue of judicial
review. You’re starting your careers in
Law – my sympathies but it is an interesting
time – one of the topics that you will study
and which is extremely interesting which I’ve
done a lot of is judicial review. Two big
different principles. Your neighbour has encroached
on your land and you say that your neighbour
is building a wall on part of your property.
You’re walking in the street, you’re knocked
down and you say the person who knocked you
down was driving negligently. That person
says that you were being careless. Now that’s
a civil law contest or disagreement between
two people which goes to the civil courts.
Separately is the question of judicial review.
You are in dispute with the government, you’re
in dispute with the state and judicial review
is the mechanism by which the validity of
what the state has done is examined and tested
before a judge. Now judges in every country,
including the United Kingdom, are usually
conservative animals (with a small ‘c’)
and they are hesitant to say that the government
has mis-regulated. So if it’s a matter which
is within the competence of the regulator,
for example whether a disabled child is sufficiently
disabled to merit a free bus pass, very rare
will it be that a judge says that the official
who made that determination got it wrong.
The official had regard to all the relevant
circumstances, I’m not going to go behind
that. But, there are situations and there
will be situations, where judicial review
may be granted and that’s one of the big
areas when new rule-making presents doctrines
established by European Law for examining
the legality of administrative action. So
one of the doctrines of European Law – I
can see glazed eyes but it’s actually interesting
so stay with me, stay awake, just hold on
for a second! – proportionality is the notion
that the public authority should not inflict
upon the individual burdens which are disproportionate
to the importance of the goal. So establishing
the death penalty for parking beyond 60 minutes
would be disproportionate. It would be other
things as well but we’d all agree that it
would be disproportionate. Now there’s a
number of doctrines of European Law which
have been established by the European courts
and others in order to assist, in order to
give standards criteria, for the determination
of challenges to European legal texts.
Now, this gets tricky. Remember, the bath
of UK law but it’s all European texts originally,
and here are the European texts, the original
European texts. One of these rules is challenged
as being contrary to European Law. Is it acceptable
for the litigant to say that text is invalid
because it infringes the principles governing
the European Law from which it was copied?
And that issue is bouncing around at the moment
and it may be the case that the UK will forbid
the invocation – or exclude, which is slightly
different – the invocation of EU legal principles
to challenge the terms of the enforcement
of the UK-labelled legal principles in this
bath. Strange? Curious? Am I being understood?
A few nods, OK, let’s deem that to be unanimous.
So judges have to make sense of these controversies.
Question: what weight should be given by a
British judge in a domestic court hearing
a challenge to the validity of a European
rule which has been Briticised? So one possibility
is that the British judge could be expected
to pursue consistency with the Acqui Communautaire,
that’s to say the corpus of European legal
principle by which we have been governed for
the past 45 years. Consistency is a good thing,
isn’t it, surely? No might be the answer,
consistency’s not a good thing because we’ve
decided to leave the European Union and therefore
non-consistency is just as good as consistency.
The British judge should make an independent
determination without having regard to consistency.
What about health, customs, safety, all those
questions? Do we want different norms in the
UK than apply in the European Union? Again,
what weight to give to consistency?
I offer another example with a personal touch
to it. As you heard when I was a student in
the United States and after that, I sat the
New York Bar exam and I passed the New York
Bar exam which is a grizzly experience, but
it’s nicer to pass than to fail. After that
I thought OK, it’s a downhill slope, I’m
going to be a member of the New York Bar.
But, the Character Committee of the New York
Bar said Forrester is a non-resident alien
and we’re not going to admit him to the
Bar’, among other reasons because ‘there’s
a number of American lawyers, American citizens,
who are looking for a job in New York and
if we let foreigners in, especially those
who are non-resident aliens, that’ll make
life more difficult for American citizens’.
Now supposing that one of you is a national
of another member state and you’re a candidate.
You say ‘I’ve studied in Spain, I’ve
got equivalent qualifications, I wish to become
an architect in Scotland, so admit me’.
Is the Scottish administration entitled to
say ‘well we’re going to give preference
to Scots. You have a Spanish qualification
and that’s fine, but we don’t really need
more architects in Scotland and if we do need
more architects in Scotland, we’re not going
to give advantages to a Spanish qualified
architect’. Now those questions will pop
up, will arise, and it’ll be up to the courts
to decide what shall be the criteria for determining
those controversies and that will be a big
and sensitive area of judicial policy. And
there, I hope very much, that her Majesty’s
government will give to judges the guidance
which is appropriate, saying do or don’t
accord importance to consistency with EU 27,
because it would be, I suggest, unfair to
British judges to blame them for pursuing
a judicial policy, a judicial practice, which
endorses the principle of consistency through
the European Union, or rejects the idea of
consistency throughout the European Union.
These are political matters as to which judges
deserve some guidance.
So, this is the end of the first point I want
to make and here are a few conclusions. First,
for as long as the provisions of European
Law are to be applied in the UK, for so long
will it be necessary, essential, to give proper
thought to how contentious issues will be
litigated. Second, it’s not by nationalising
EU regulations and rebranding them as British
that problems of interpretation will be solved.
The current criteria for determining those
controversies are terribly complicated and
I hope that they will be improved. And finally,
I was accused after a report of a talk that
I gave in the Press of being a ‘pompous
traitor’ and I said ‘I know about the
pompous but the traitor’s a bit surprising!’.
So we shouldn’t accuse judges whose decisions
aren’t pro or anti EU, or pro or anti UK,
or pro or anti UKIP, or pro or anti Labour.
We shouldn’t accuse judges who have the
job of making sense of texts, of having a
lack of patriotism if they do their best to
make sense of an extremely entangled situation.
OK, now, my next topic is what needs to be
taken account of before a Brexit can safely
occur, and I could go on for two or three
hours but let me just cut it to the bone and
do it in two and a half hours! The first one
is crime, policing and security. I give you
a recent example not this year, last. A murder
is committed in Glasgow, a young woman is
attacked in a park in Glasgow and horribly
assaulted and murdered. The police come, they
discover the body, they make enquiries and
the suspect is rapidly identified. The suspect
has skipped town and has gone, as it happens,
to Slovakia of which he is a national. Slovakia
does not deport normally its own citizens,
it does not extradite its own citizens, but
because of the European Arrest Warrant, the
suspect was within a day or two on the request
of the Scottish police and the Lord Advocate,
the Head of the Prosecution Service in Scotland,
the person was arrested and he was sent back
to Scotland where he stood trial, was convicted
and sentenced to prison. That was done on
the basis of cooperation between police and
that’s under a framework at the top of which
is European Union Law. You can’t do extradition
on the basis of a back of an envelope. You
can’t do extradition on the basis that ‘I
know that policeman, he’s a good guy, this
person looks like a rogue, let’s ship him
off’. That is no acceptable basis in a society
of Law for extradition, for arrest.
Now, that’s one judicial example. Another
one, constantly the UK police use a database
to check on criminality and the identity of
individuals. So a Latvian suspected burglar
is arrested and there’s something like a
million hits a year. It’s an enormous number
of occasions on which the British police – and
other police forces – exchange information
on criminal enforcement matters.
Air transport, flights between the UK and
the United States, used to be governed by
bilateral deals so that British Airways, an
example, could fly to Washington in exchange
for United being able to fly from Los Angeles
to Glasgow, say. That would be a bit of a
stretch but you see the idea. It used to be
bilateral cooperation between countries. Now
aviation is governed by European block, the
28 countries have done a deal with, for example,
the United States. It’s not only with respect
to routes but it’s also with respect to
the qualifications of pilots. So it’s not
that there is no solution. There can be, there
would be solutions, but the matter needs to
be addressed.
You can hear from my accent as I move to another
subject that I come from Scotland and the
third most important economic activity in
Scotland is the production of Scotch whisky.
Now the UK with respect to denominations of
origin for food and drink used the doctrine
of ‘passing off’; that’s to say the
maker of an Arbroath, the producer of an Arbroath
smokie or a Loch Fyne kipper, or Scotch whisky,
could say to a rival in Newcastle ‘you’re
selling your fish or your whisky, pretending
that it is authentic Scotch whisky, pretending
that it’s authentic Arbroath smokies, and
that’s not true’. Now that was the UK
method. The continental method is much more
rigorous and it is based on appellations of
origin - appellations of quality - so that
means that Brie, Camembert, Chianti, Grappa,
are all defined – Parma Ham, it has to be
prepared in a certain way and it has to be
sliced in Parma. Feta cheese. Now, that approach
contradicts the American approach which used
to be Wisconsin Cheddar or California Chablis,
and Champagne. There is a drink which used
to be called Babycham – I don’t know if
it’s still available in the bar but I suspect
not – and it was suppressed because Babycham
implies that it’s connected with Champagne.
Now the importance for the Scotch Whisky industry
and other producers of food and drinks cannot
be overstated and it’s highly desirable
that Brexit not happen until a regime is in
place whereby those producers are for the
future adequately protected.
Then customs. You’ve heard probably on the
news ‘let’s adopt WTO rules’. Now the
WTO, formerly the GATT, has the regime that
a country which signs – or a group of countries
– which signs the GATT, or the WTO, the
World Trade Organisation, makes a promise,
‘my country will levy 5% on tennis balls
from anywhere in the wall’ from a GATT signatory,
from a WTO signatory, and in exchange New
Zealand, say, says ‘my country in exchange
for that promise, my country will levy 2%
on golf balls and 1% on butter’. So each
country or group of countries that is party
to the WTO commits itself multilaterally to
treat everyone the same – no distinction
between countries who are exporting to your
territory – in exchange for promising what
that country will do going forward. Now WTO
rules don’t eliminate customs formalities
between countries, so just to be clear, if
we’re talking of zero tariffs for the UK
and respect for WTO rules, that would mean
that the UK charges no tariffs on imports,
which it’s free to do, but when it exports
or UK exporters ship to France, they would
be subject to the Common Customs Tariff which
is somewhere between 5 and 10% and is consistently
applied by the 27 member states.
Then persons. There are something like 4 million
people, including two of my sons, who are
dependent on – and each of you who’s a
citizen of the UK – you have grown up in
a world where it is as normal to go and move
to Thessaloniki or to Salzburg or to Berlin,
as it is to go to Inverness or Exeter. Now
the rules concerning the rights of Brits abroad
and the rights of EU 27 in the UK are extremely
complicated and extremely sensitive. I have
lived as an alien in a foreign country and
dealing with public authority, having the
right to reside, is very different to having
the right to ask to reside. These are real
burdens and they are worse for the poor, the
least educated and the most disadvantaged
in society. Now this is not the place to describe
in great detail the problems being debated
and those problems have perhaps become worse
because of the Windrush dramas and scandals,
but they should not be underestimated.
Next example, driving licence. Next example,
equivalence of qualifications. You’re all
students, you’re all brilliant, you all
want to do well, you all want to get a degree,
and you all want freedom of movement. Now
what recognition will be given to your Law
degree when you leave this university and
will that entitle you to practice your profession
in other countries? We don’t know. At the
moment someone who is admitted to the Bar
in England is entitled to present themselves
to earn their living as an English Barrister
in Brussels, or in any other member state,
and there are thousands and thousands of young
lawyers, and older lawyers, who have relied
on that practice, that phenomenon, that legal
entitlement, to pursue their careers, including
myself.
So I have listed very high level, very rapidly,
a dozen examples. Maybe not, maybe it’s
only eight, but a bunch of examples where
my contention is that it’s dangerous for
Brexit – or undesirable for Brexit – to
go ahead without those things being properly
thought through. Or if Brexit politically
goes ahead, we need a transitional period
during which these matters can be properly
and seriously addressed.
My last point - and I can see a sigh of relief
going up, I will stop – my last point is
a plea for moderation. Nationality is not
a reliable basis for determining ethnicity
or affiliation. The drivers of human movement,
the refugees from the Ukraine, the refugees
from North Africa, the dramas that have afflicted
Europe over centuries, don’t correspond
to the political frontiers of countries today.
If you look at maps of Europe going back to
1648 and the Treaty of Westphalia, you will
see that Poland gets bigger, shrinks, shrinks,
disappears, and then is re-established. You’ll
see that Serbia disappears and is re-established.
You’ll see that Finland, Sweden, Norway,
their frontiers move in function of political
pressures. So it is not the case that nationality,
loyalty, ethnicity, patriotism, match political
frontiers. Nelson’s ships at Trafalgar – sorry
if there’s any French people here – had
28 nationalities aboard.
Now the European Union has a number of real
achievements which I think can’t sensibly
be denied. One is the elimination of military
rivalry in Western Europe; another is the
bringing down – or contributing to the bringing
down – of the Berlin Wall and the liberation
as they see it of hundreds of millions of
people in Eastern Europe from Soviet Rule.
Now, those achievements are enormous and Europe
today I think is unique in the world in that
almost a continent of states have agreed with
each other that they will treat men and women
in the workplace equally, that they will give
opportunity of access to healthcare, that
they will give equal pensions to men and women,
that they will accord decent conditions of
employment, consistent protection of the enfironment,
and in other ways good reasonable consensually
agreed standards for how we live our daily
lives, and that there will also be a respect
for democratic values. And they have agreed
with respect not just to their own citizens
but to the citizens of all the other member
states. That is a unique European achievement.
Now there’s, I suggest, a great burden upon
the negotiators to deliver a result that respects
Europe’s values. The UK Civil Service, the
staff of the European Commission, are extremely
talented, exceptionally gifted, but their
tasks are enormous and I suggest that there’s
a duty upon commentators, bloggers, teachers,
students, anyone who is articulate, to avoid
the temptation to mock, to exaggerate or to
condemn on the basis of opinions which are
not shared. The seriousness of the challenge
is such that it deserves better. It’s unhelpful
to say ‘Just Leave’, as if Brexit was
like leaving the Tennis Club. The question
is far, far more delicate and so given these
difficult circumstances, winning should not
be the goal. We should have learned from now
that History teaches us that bad treaties
and unrealistic treaties may not survive conflict
and may not survive, I should say, crisis.
So my last remark to you is let us calm down,
let us breathe deeply, let us reproach zealots
and let us pursue and encourage sensible discourse
with respect to Brexit. Thank you for your
attention.
