The EU (Withdrawal) Bill and the courts: peering through the glass darkly

In a recent Spotlight article, Richard Gordon QC considers the first draft of the EU (Withdrawal) Bill and the extent to which banks and other financial market participants can challenge by way of judicial review if they dislike the way the government amends primary financial services legislation by statutory instrument.

He notes that the most important in practice for commercial regulation is likely to be the disappearance of EU 'soft law measures', including communications, declarations, guidelines and special reports of the EU institutions. 

Furthermore, the content of the Bill seems likely to provide (among others) banks and other financial market participants with a myriad of possible challenges by way of judicial review if they dislike the way in which amendments to primary financial services legislation are made by statutory instrument. 

Consequently, in giving effect to the need for expedition, Parliament has simply passed the burden of sculpting a satisfactory legal and constitutional post-Brexit resolution to the courts.

If the current drafting of the Bill remains in substantially the same form as it is now, one thing is certain. Parliament no doubt wants a flexible Bill in order to push through the gargantuan task that lies ahead. But easy legislative solutions rarely work in a constitutional context. In giving effect to the need for expedition, Parliament has simply passed the burden of sculpting a satisfactory legal and constitutional post-Brexit resolution to the courts.

It may well be in the courts in judicial review, rather than in Parliament in debate, that the most formidable obstacles to the progress of Brexit will now surface.

A shorter version of this post was first published here.

Richard Gordon QC is Barrister at Brick Court Chambers.