Making a new EU

The passing of Baroness Thatcher has triggered a swell of emotion, and some parts of her legacy permeate today’s politics.

The UK’s relationship with the EU at least partly defines her premiership. David Cameron says he wants to renegotiate the UK’s relationship with Europe and then consult the electorate in a referendum. He wants a new EU and an updated relationship with it. That was the thrust of his long-awaited January EU speech, celebrated, criticised and thoroughly dissected in a flurry of headlines from Brussels to Washington.

The backdrop to this fiery speech is the rather more prosaic review of the ‘balance of competences’. The brainchild of the coalition, it has the potential to shape, if not actually determine, the UK negotiating stance, if we are to pursue that new relationship. A significant chunk of the review focuses on the internal market. Coincidentally, it is the 50th anniversary of one of the fundamental rulings of the Court of Justice of the EU (CJEU): Van Gend en Loos established many of the innovative legal principles underpinning the single market, still considered by many, including Cameron, to be the cornerstone of the EU.

What it is and why it matters

The consultation looks at the balance of competences between the EU and the UK. This is a complex box of tricks: four tranches of consultations, with 32 specific consultation papers. The Foreign & Commonwealth Office (FCO) is responsible for co-ordination, but each consultation is the responsibility of the relevant government department, such as BIS for trade and investment, DEFRA for environment and climate change, HM Treasury for taxation, and the MoJ and Home Office for the civil, and police and criminal justice consultations respectively.

Such a detailed investigation will undoubtedly influence future political decisions, although the FCO is clear that its remit is not to make recommendations, merely to collate information from responses received.

Any change in the law piques the interest of at least part of the legal profession, but the implications of this exercise go far deeper than routine CPD. Large parts of our legal system are interwoven with EU law; any dislocation in this relationship would mean vast changes to the way our legal system functions and the law itself, affecting everyone from consumers to large multinational companies. The EU committee of the Law Society is working closely with the Brussels office to co-ordinate responses from across the Society on consultation topics of interest and importance to solicitors and their clients.

The role of the Law Society

The Society has already submitted responses to the first tranche internal market synoptic paper and taxation paper. Each committee is able to draw on hundreds of years of combined expertise in topics as diverse as trade in the internal market, financial services regulation, environmental law and access to justice. It is able to combine the wisdom of practical expertise with in-depth understanding of the law and, crucially, how EU and UK laws interact. As such the Society has something unique and invaluable to offer.

Some members will question whether the Society can have much influence in such a politically charged arena. History says ‘yes’. For instance, the Society briefing for parliamentarians on the Lisbon Treaty was used as an objective summary of the treaty by many MPs during the ratification debate. A count of the Society’s recent mentions in Hansard suggests that our briefings and evidence are cited more often by UK parliamentarians than those of any other professional body. On some issues we will be able to align ourselves with other bodies and may even propose joint submissions. But it is vital that a view is heard from solicitors, who will have to operate in whatever legal environment the future provides.

Themes

An informed debate on the UK’s role in Europe is a political necessity, but the Society has a vital role in representing the interests of the legal profession, as well as the consumer and business interest. A secure UK position in the EU strengthens our ability to shape future EU rule-making.

Each separate consultation paper will require consideration of specific issues, but common themes will run across many of the responses, for example the importance of the internal market and the UK’s success in influencing its development. Then there is the sometimes thorny issue of the CJEU. Confusion exists in many quarters between the CJEU and the European Court of Human Rights. Lawyers must continue to make clear that the latter is not an EU institution. It is in a separate location (Strasbourg) and deals with application of the European Convention on Human Rights (which is not EU law).

The CJEU is not perfect, but it is not the errant knave that it is sometimes accused of being. It is a constitutional court dedicated to maintaining the rule of law. While certain decisions of UK courts are subject to criticism in the media, it seems the EU moniker allows commentators – who should know better – to take off their gloves while retaining their blinkers.

In fact reforms are already under way, and in another strand of work the Society’s EU committee is contributing to the House of Lords EU select committee inquiry on this topic. Many will have halcyon memories of student days and professorial odes to the separation of powers: it would be strange if this was something we recognised for our system but saw as an unnecessary inconvenience within the EU.

There is a long way to go before the UK’s relationship with the EU will be settled. It is important that the Law Society and its members involve themselves in those discussions.

Mark Clough QC of Brodies is chair of the Law Society’s EU committee