Philip Moser QC
The new editor of the Advocate has kindly asked me to contribute a short piece in the style of the ‘editor’s note’ that I wrote over almost twenty years as editor of this magazine. In the internal jargon I used with the publisher, I used to call this the ‘ednote’. Accordingly I think of this as the endnote.
I could reminisce about the development of this publication and the changing landscape of legal writing, but there is far too much substantive matter of current interest to EU lawyers to look back. We must instead look forward to a new, post-Brexit era of EU law in the transitional period and EU-derived law beyond that.
At the time of writing there is a fascinating debate over two issues in particular: the proposed use of delegated powers and the connected, particular issue of when and how lower courts in the UK should be able to depart from retained CJEU case law when interpreting retained EU law after the transitional period. On the former, there is a certain irony in the fact that, having freed itself of EU directives and regulations, Parliament is about to grant a similar power of regulation to ministers. Even, in the case of Northern Ireland, the power to amend the Withdrawal Act itself, described by Lord Anderson QC in the House of Lords as “Henry VIII on steroids”. In relation to the lower courts’ proposed power to depart from CJEU precedents, it will be immediately apparent what this might do to legal certainty and the doctrine of precedent – and yet, what tantalising possibilities this would open up for the EU law practitioner. The whole panoply of EU case law would be susceptible to being reopened, even in a first instance trial, at least until such time as the Supreme Court found a workable net to recapture the herd of hares set running by such a move. One interesting compromise of note is that put forward by Lord Mackay, which envisages a sort of national reference for a preliminary ruling from the Supreme Court where a lower court considers that retained CJEU case law should be departed from. The latter would be an interesting procedural legacy from the Treaty of Rome. The Bar European Group will continue to chart the development of this law, with its members at the cutting edge of developments.
It remains for me to thank all those who have made the last twenty-odd years of Advocates possible and so enjoyable; they know who they are. I wish the new editor and his team the best of luck.