Legal experts say common law Ireland to be ‘isolated’ within EU after Brexit

Ireland will become much more isolated after Brexit as one of only two common law jurisdictions remaining in the European Union, leading Irish legal experts have warned.

Paul Gallagher SC, a former Attorney General of Ireland, told a UCD Sutherland School of Law seminar on Friday that differences between the two legal traditions of common and civil law have come to a head in the EU, particularly with regard to regulations involving contract and criminal procedures.

The Common Law and Brexit: A New Frontier? was chaired by Professor Conor Gearty of the LSE, with presentations from Mr Gallagher as well as Dr Catherine Donnelly, Caoilfhionn Gallagher QC and Conleth Bradley SC. Justice Gerard Hogan SC and Lord Mance of the UK Supreme Court were also in attendance.

The panel focussed on the effect Brexit would have on the future of common law. When the UK leaves the EU in March 2019, Ireland and Cyprus will be left as the sole remaining common law countries within the EU, which is dominated by states of the civil law tradition.

Historic tensions between the common law and the civil law have occasionally played out within the EU. The common law is noted for its empowering of the judiciary, which can create law independently of the legislature through precedent. This is a somewhat foreign concept in civil law, which places greater importance on the codification of laws, having originated itself from the ancient Roman legal codes.

Mr Gallagher noted that EU lawmakers have demonstrated “an impatience with the common law” in the legislative process.

Previously, the UK was the main power from which the EU derived its common law expertise, and shared a common interest with Ireland in ensuring that EU legislation was not drafted or interpreted in a way that would be contrary to the principles of the common law.

In the UK’s absence, “Ireland will become much more isolated” within the EU legal system, Mr Gallagher said.

Meanwhile, Mr Bradley highlighted the difficulty of separating EU regulations from UK law in the aftermath of Brexit. Dubbing the proposed EU Withdrawal Bill as “tortuous, vague … and unable to deliver legal certainty”, he predicted that the UK will struggle to determine which EU laws will be scrapped following Brexit. A large body of “retained laws” is likely to form following the separation by which EU regulations will become part and parcel of the UK’s legal framework.

Similarly, Dr Donnelly addressed the reality that many “continental” civil law principles have found their way into the UK’s domestic law via EU legislation. Contract law in both Ireland and the UK has been particularly influenced by European principles such as “legitimate expectation” and the duty of good faith, and it is doubtful that the principles will be excised from British law following Brexit.

Dr Donnelly noted, however, that there is a possibility that Irish and British common law will diverge following Brexit, as the former continues to incorporate European legal principles apart from the latter.

Friday’s seminar was jointly organised by King’s Inns, UCD Sutherland School of Law, and the Society of Legal Scholars (SLS), as part of the latter’s first annual conference to be held outside the UK.

Kevin Burns, Irish Legal News