Why the ECJ still has a role to play in Britain’s lawmaking

Now that Britain has left the EU, we are no longer bound by the European Court of Justice. Some may view that as something to celebrate. Yet there may also be downsides.

The ECJ is the final court of the EU. It hears lots of cases about EU member states who break EU law. It then reaches conclusions which form case law. All 27 members of the EU are bound by this, but Britain, outside the EU, is not. But here’s the catch: some of those decisions might actually be good ones. The solution is that we should borrow these good ones for ourselves.

English law is a magpie. We pick up shiny bits of ‘good law’ that other places have and we make them ours. It is what lots of sensible sovereign states do, and there is nothing wrong with this. There is no copyright in law. After Cain and Abel, no country got to call dibs on having a law against murder and then charge royalties to all the others countries who wanted one too. Good laws sell themselves.

Banking law, across the world, is also a magpie. Whole swathes of good laws written by people we pay for (the FCA) are put on websites. Other nations see them. They think they are good (they are). They highlight them, they hold down Ctrl-C, they press Ctrl-V. They copy our laws in to their own.

The UK is very lucky in law. We don’t only acquire useful law by copy and paste. Sometimes we take the person too. Lord Hoffmann was one of our best ever commercial judges. The law he made will outlive me. How were we so lucky as to get him? We nicked him. Via a scholarship to Oxford, we essentially stole him and his genius from South Africa.

If you want the best law then you can be lucky or you can be light fingered. We are both.

In the same way, the ECJ will have a role in our law going forward. It is not possible, prudent or wise, to cut them out completely. If the ECJ comes out with an outstanding legal argument (and this may well happen in state aid law – which is an area where they have a lot of experience and we have relatively less) then we would be fools not to copy it.

Every lawyer has their own judge from another jurisdiction whom they read and value. For some British lawyers, these judges will be those sitting in Luxembourg. Their judgments will be read by these lawyers and shamelessly copied when they are good. That is, after all, what sovereignty means. Britain may no longer be compelled to follow the ECJ, but that doesn't mean we cannot choose to follow it. The ECJ is not gone forever.