Brexit a threat to English law's ability to keep pace with digital age

‘I don’t like talking about money’, Lord Thomas said, ‘but if you don’t talk about it, you have little chance of getting any.’

The Lord Chief Justice’s quip towards the end of his Law Commission’s Scarman lecture last night was, in fact, the second time he has talked about money in less than a month.

He raised the subject a fortnight ago in the Michael Ryle Memorial lecture, which he gave on 15 June. The lecture, which dissected the relationship of the judiciary with other branches of the state, was a further prick at the former Lord Chancellor, Liz Truss, for failing to speak up for judges under attack in the ‘Enemies of the people’ headline.

As a subsidiary point, he said the Lord Chancellor should have an ability and stature that could command standing with the Treasury and secure financial resources for the justice system - this was fundamental to ensuring the independence of the judiciary. Days before David Lidington’s swearing in as the new Lord Chancellor, this was a clear message about how Lord Thomas envisaged the relationship between the judiciary and new justice secretary.

Lord Thomas’ point last night was made in a different context: law reform in post-Brexit Britain. Brexit, he said in one of his last public speeches before he retires in October, was probably ‘one of the biggest peacetime issues’ that the UK has had to face and ‘without doubt the most complex in legal terms’.

As Britain extracts itself from the EU, a raft of new laws would have to be considered – whether or not part of the acquis was repatriated into UK laws. One example the Lord Chief Justice gave was what to do with the Rome regulations on applicable law. This could have a major effect on the popularity or otherwise of English law in commercial contracts.

Given the extent to which EU law had been integrated into domestic law since the European Communities Act, ‘the task is enormous in scale’. The government alone would be unable to face the sheer volume of the work and the Law Commission, he said, should be entrusted with some of the tasks.

But Brexit was only one of the challenges Britain would face. The other was the advent of the digital age, which Lord Thomas said was ‘today’s version of the white heat of the technological revolution’. In legal terms, this raised challenges to traditional concepts such as ownership, contract, employment rights, intellectual property, and consumer rights.

With the EU set to continue to develop its own digital economy laws as a group of states with whom Britain will continue to trade, ‘we’ll be on our own’, he commented, and it would ‘foolish’ to ignore the challenge this would represent for Britain’s legal system. It wasn’t just a matter of keeping English law up to date with modern ways of doing business, but also to ensure that it kept pace with developments in other jurisdictions, so that it remained the law of choice for commercial transactions.

The Law Commission had the track record to tackle this task, Lord Thomas continued. However, just as sufficient funding for judges was essential to the independence of the judiciary, ‘there can be no truly independent Law Commission that is enabled to serve our state in the way I have outlined without adequate core funding’.

A precise figure wasn’t necessary but there should be ‘proper commitment to resourcing appropriately’. Such funding would go towards funding technological expertise in-house on a project basis to ensure that lawyers are not acting on their own – which ‘is not a good starting point’ – but could draw on specialist knowledge and skills, and take account of the wider issues.

Lord Thomas' suggestion seems sensible but there are two obstacles in the way. Whether the government sets up a specific Brexit law reform body is a political decision and there is a risk that, if the Law Commission is that body, it could end up tarred with the Brexit brush.

Second, and more importantly in practice, it is bound to take years for Britain to repatriate EU laws into UK legislation. Even with an expanded staff count, the Law Commission may simply not be able to cope with the volume of work.

Jean-Yves Gilg is editor-in-chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg