Legal experts say common law Ireland will be ‘isolated’ within the 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, former Attorney General of Ireland, says a UCD Sutherland School of Law Friday’s seminar that the differences between the two legal traditions of common law and civil law have reached their climax in the EU, particularly with regard to regulations relating to contracts and criminal proceedings.

Common law and Brexit: a new frontier? was chaired by Professor Conor Gearty from LSE, with presentations by Mr. Gallagher as well as Dr. Catherine Donnelly, Caoilfhionn Gallagher QC and Conleth Bradley SC. Judge Gerard Hogan SC and Lord Mance from UK Supreme Court were also present.

The panel focused 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 remain the only remaining common law countries within the EU, which is dominated by states with a civil law tradition.

Historical tensions between common law and civil law have sometimes arisen within the EU. The common law is known for its empowerment of the judiciary, which can create laws independently of the legislature through precedent. It is a concept somewhat foreign to civil law, which gives greater importance to the codification of laws, itself derived from the ancient Roman legal codes.

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

Previously, the UK had been the main power from which the EU drew its common law expertise and shared with Ireland a common interest in ensuring that EU law was not drafted or interpreted in a contrary to common law principles.

In the absence of the UK, “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 wake of Brexit. The proposed dubbing Bill on withdrawal from the EU as “tortuous, vague… and unable to provide legal certainty”, he predicted that the UK will struggle to determine which EU laws will be scrapped after Brexit. A large body of ‘retained law’ is likely to form as a result of the separation whereby EU regulations will become part of the UK legal framework.

Similarly, Dr Donnelly addressed the reality that many ‘continental’ civil law principles have found their way into UK domestic law via EU legislation. Contract law in Ireland and the UK has been particularly influenced by European principles such as ‘legitimate expectation’ and the duty of good faith, and these principles are unlikely to be removed from UK law after Brexit. .

Dr Donnelly noted, however, that it is possible that Irish and British common law will diverge after Brexit, as the former continues to incorporate European legal principles outside the latter.

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

Kevin Burns, Irish legal news

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