The former head of the British government’s legal department (GLD) has suggested that the country should retain the supremacy of EU law, to avoid legal uncertainty and “unpredictable consequences”.
According to the Law Society Gazette of England and Wales, Sir Jonathan Jones, now a consultant at law firm Linklaters, told the European Scrutiny Committee on 9 February that he was “very wary” of the idea that retained EU law could be dealt with “by some kind of technical and quick, fast-track mechanism”.
Jones resigned as permanent secretary of the GLD in 2020, after a dispute with Downing Street over its plans to challenge parts of the EU withdrawal agreement.
Consequences
He said that there was a case for keeping the supremacy of EU law, telling MPs: “I think one has to be very careful about what the consequences would be of getting rid of it, unless you do something very clear in its place.
“Any powers to make changes via secondary legislation should themselves be scrutinised very carefully… so that parliament can have the proper input into what will potentially be the biggest overhaul of our statute book that any of us can remember,” he added.
Removing the supremacy of EU law “means potentially changing the position or the rights of individual citizens, businesses and so on in ways that are wholly unpredictable,” Jones argued.
According to the Gazette, he warned MPs that its removal would provoke litigation, and urged them to beware of “unintended consequences”.
Blanket approach
In response to committee chair Sir Bill Cash, who said there was a “constitutional need” to remove the supremacy of EU law, Jones said: “It would be much better, I would have thought, to look at the law topic by topic, or sector by sector, to see whether any problems arise, and whether there are cases where it would be preferable for an inconsistent UK law to apply over a conflicting EU measure.
“It would be better to then change the law for that particular topic or measure, than to adopt a blanket approach that takes away the rule altogether and has the unpredictable consequences that I mentioned.”
Eleonor Duhs – a partner and head of data privacy at City firm Bates Wells, who was previously the lead lawyer on the core provisions of the European Union (Withdrawal) Act 2018 – agreed, pointing out that existing case law “has the principle of supremacy interwoven in it”.
“If you take out that principle, you may be taking out case law that is actually relevant to how rights and obligations are still interpreted in domestic law, until this body of law is repealed and replaced,” she added.