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Lord Chief Justice: Ministers should rely on the Law Commission to legislate Brexit

Law Commission

5 min read Partner content

With Brexit presenting one of the largest legislative challenges in modern times, the Lord Chief Justice Lord Thomas encourages parliament to look to the Law Commission to help. 

Britain’s decision to chart a new course for itself independent of the European Union amounts to one of the largest legislative projects ever undertaken in the country. At the heart of this endeavour will be the Government’s Repeal Bill, as the UK begins the process of repatriating EU law into domestic law.

The bill will repeal the 1972 European Communities Act, which ensured that European law took precedence over those passed in the UK parliament. Once ratified by MPs and peers, it will also end the jurisdiction of the European Court of Justice.

The task at hand, then, is “enormous in scale”, as the Lord Chief Justice, Lord Thomas, said on Monday evening. Delivering the Law Commission’s Scarman lecture, the head of the judiciary reflected that the UK’s extradition from Europe is among the “biggest peacetime issues that the UK has ever faced”. And so, he continued, it seems “obvious” and in the “national interest” that the Law Commission, the independent body sponsored by the Ministry of Justice, should be utilised by the Government for its great legal and technical expertise to assist with legislating for Brexit.

“It is not for me to tell the Law Commission, less still the Executive or Parliament, what should be done, but it is essential in these times that the State uses the Law Commission in this or some other constructive way in the process of Brexit,” he told the audience at London’s Gray’s Inn, comprised of members of the senior judiciary, lawyers, parliamentarians and government officials.

“It is in the clearest interest of our State that technical legislation of this kind underpinning Brexit receives wide debate and clear drafting. The use of the Law Commission in this way is something to which urgent consideration should be given.”

Once the process of repatriating EU law has taken place, future governments will then be able to amend, repeal and improve any law it chooses. According to the House of Commons library, 13.2% of UK laws enacted between 1993 and 2004 were related to the European Union.

Lord Thomas’ argument, outlined in his speech, is that the Law Commission harbours the requisite expertise to help provide advice on matters of “great technical complexity”. To the uninitiated, the Law Commission was created in 1965 to keep the law of England and Wales under review and to recommend reform where it is needed.

Assisting with legislating for Brexit is not the only role Lord Thomas envisaged for the Law Commission, for whom law reform remains front and centre, going forward. Here he cited three issues that the UK must face up to as it embarks on a new trajectory outside of the EU. First, the need to keep commercial law up to date to ensure that English law remains the law of choice “for modern ways”. Second, ensuring Britain keeps pace with developments in other countries. And third, he recognised the need for a body to take the lead on this agenda, namely the Law Commission. With the EU set to go it alone in forming its own digital economy laws, “we’ll be on our own”, Lord Thomas said, and it would be “foolish” to ignore the challenge this poses to Britain’s legal system.

“All these considerations, in my view, relating as they do to a radical change in law and to legal development elsewhere, particularly in Europe, the United States and Asia, call for consideration of a long-term role for the Law Commission as the body charged with ensuring that our legislation meets such radical and fundamental changes and does not leave our State in isolation from global developments on which we will, as a trading State, become even more dependent,” he said.

“Clearly whether it is the Law Commission or some other body that is charged with this essential task is ultimately a political decision. However, the Law Commission has an undoubted track record of very considerable achievement and is eminently suited to this role.”

But the Law Commission too has a role in modernising, Lord Thomas continued, by bringing in non-lawyer, in-house digital and technology experts to ensure the body too benefits from external voices. Before he retires in October, Lord Thomas also called on ministers to direct more cash to the Law Commission. “There can be no truly independent Law Commission that is enabled to serve our state in the way I have outlined without adequate core funding”, he said.

During a question and answer session after Lord Thomas’ 45-minute address, Lord Falconer, the former Justice Secretary asked whether the Lord Chief Justice was suggesting the Law Commission should have a role in advising government or parliament on Brexit now, or after the UK has formally quit the EU in 2019.

“Because I would be very concerned if what you’re suggesting is that some function be delegated to the Law Commission in relation the Repeal Bill, because the consequence of that will be you will find, for example, the Ministry of Justice… being sidestepped, left less significant than it should be in fighting for their corner within the executive in relation to what the Repeal Bill should contain,” he continued.

Lord Thomas replied that the Law Commission does indeed have a role to play now, especially while the Government faces up to the pressures that “one would expect [as a result] of a very large exercise of this kind”.

The Scarman lecture was formed in honour of Lord Scarman, the first chair of the Law Commission.

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