Brexit and the new legal order

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The elevation of Theresa May to prime minister may make much more likely the possibility of the UK becoming in some form a member of the European Economic Area.

As many commentators have noted, membership of the EEA, which currently comprises EU countries plus Norway, Iceland and Liechtenstein, ostensibly brings with it a requirement to abide by the EU's four key freedoms: of movement of persons, capital, goods and services, and consequently a raft of existing and future EU laws (although the UK may seek a bespoke deal).

However, less noted is that as part of the EEA, the UK would have access to and be answerable to a different ultimate court in the determination of those laws. Instead of the EU's Court of Justice, the UK and its citizens would go to the European Free Trade Association (EFTA) Court, currently with just three judges, one from each of Norway, Iceland and Liechtenstein.

Over the years the Court of Justice has created difficulties for UK governments with its frequent expansive - and some suggest questionable - interpretations of EU laws. More recently, the court has used the Charter of Fundamental Rights of the EU, which came into effect under the Lisbon Treaty in 2009, as, in effect, a constitutional document, enabling it to overturn the legislation of the EU and decisions of the European Commission.

Although the UK and Poland thought they had secured an exemption from the charter, this was quickly dispensed with by the Court of Justice and its full force was held to apply to these countries. The nature of the court and its decisions was used by Brexiteers during the referendum campaign to argue that the EU could not be trusted, regardless of what was written down.

The UK has had little opportunity to exert any real influence over the Court of Justice and its judicial culture and the reasoning of its judgments remain highly alien to many UK lawyers.

But EEA membership may offer the possibility for the UK to embrace and seek to influence the EFTA court more along the lines of UK legal traditions. Crucially, the charter does not extend to EEA states, so in any event the EFTA court would find it difficult to have the broad-ranging role that the Court of Justice has enjoyed.

And if the UK does not secure EEA membership but has some different negotiated arrangement, the final determination of these laws may be our own Supreme Court, which, where appropriate, may well seek to go its own way too.

Indeed, it might be said that while the overarching legal project for the British for the last 40 years has been to conform our common law in line with European law - both EU and the European Convention on Human Rights - the possibility now may be for a legal project over the next 40 years to seek to strike a distinctive interpretation of European law that is more in tune with our own legal traditions.

This commentary was first published on 14 July 2016 in The Times' The Brief.