UK judges will be open to accusations of being 'unpatriotic' when they continue to follow European law post-Brexit, Ian Forrester QC, UK judge at the General Court of the European Court of Justice, said last night.
Forrester, almost certainly the UK’s last appointment to the EU court, said the 'turbulence and uncertainty' surrounding the UK’s departure 'has given us our greatest crisis of governance for years'. 'There is a tendency to say, once liberated we will be able to make our own rules,' he told the London Solicitors Litigation Association, but across many areas of regulated activity, such an ambition would not be realised.
'The UK’s affiliation to the elaboration of technical standards has been extremely important,' Forrester noted. 'After Brexit, I can’t imagine we will be casual about equal pay for men and women or competition law.'
For judges faced with 'textual analysis', Forrester said, it was 'not unpatriotic to consider what judges in the EU27 would do'. European law, he said, provided ‘functioning common laws that are technical and precise’.
'It seems we must shed vague principles of European law,' he said, but decisions on issues such as contested product safety presented a 'physical situation' where 'consistency has an obvious merit'.
Forrester’s chief concern post-Brexit was the position of individuals. He typified the position of UK and EU citizens post-Brexit as, 'you can stay, but you cannot move'. The right to open a business, take a job, marry, be spared discrimination, or to have access to a profession would change, he said. 'There is a huge difference between having a right, and a right to request [these things].'
He feared the 'loss of tolerance' for which the British 'were known'. 'The challenge of being aliens is real. The Windrush [generation] episode should make us privileged people blanch,' Forrester, resident in Belgium, said. 'No one is going to deport me… [but] a cleaning lady? That is another issue.'