Taking back control? Brexit and the Court of Justice

Abstract

Introduction On 23 June 2016, 52 per cent of voters that participated in the Brexit referendum voted to leave the EU. The message of the Leave Campaign to ‘take back control’ struck a chord with the majority of the electorate. Notwithstanding the separate reasons that led each and every one of those voters to vote in favour of the withdrawal of the UK from the EU, it is interesting to note that the UK government has interpreted this vote as an urge to shield the UK legal order from the influence of EU law. The prime minister, Theresa May, in her first speech in a party conference as leader of the Conservative party noted: ‘Our laws [should be] made not in Brussels but in Westminster. Our judges [should be] sitting not in Luxembourg but in courts across the land. The authority of EU law in this country [should be] ended forever.’ The stance of the UK government towards EU law and its main interpreter, the Court of Justice is hardly surprising, if one takes into account the following. First, even from the very beginning of the UK’s EU membership, the EU law principles of primacy and direct effect upon which the EU constitutional order is founded were sitting uncomfortably with parliamentary sovereignty which consists of the paramount principle of the UK legal order. Brexit offers an unprecedented opportunity to the UK legal order to ‘divorce’ from those ‘foreign’ legal principles that have created tectonic changes to it. Second, the result of the referendum shed light on the fact that the UK electorate was not in support of the current level of EU integration. Of course, ‘integration is fundamentally a political process’ but ‘law has a vital role to play in the process.’ In that sense, the detachment of the UK legal order from that of the EU and its institutions is almost a logical consequence of that vote.