Government ‘finalises legal preparations’ for no-deal Brexit

Irish-British judicial co-operation ‘won’t be perfect’ after UK’s exit, warns Chief Justice

Chief Justice of the Supreme Court Mr Justice Frank Clarke, AG Séamus Woulfe and Lord Chief Justice of Northern Ireland Sir Declan Morgan after a panel discussion, Judicial co-operation after Brexit. Photograph: Alan Betson

Chief Justice of the Supreme Court Mr Justice Frank Clarke, AG Séamus Woulfe and Lord Chief Justice of Northern Ireland Sir Declan Morgan after a panel discussion, Judicial co-operation after Brexit. Photograph: Alan Betson


A “string of statutory instruments” – the equivalent of substantive legislation – will be finalised over the coming days as part of preparations for a possible no-deal Brexit, the Attorney General has said.

Séamus Woulfe told a law conference in Dublin that the statutory instruments were required beyond the Government’s omnibus legislation to prepare the State for a potential disorderly UK exit from the EU. His remarks came moments after British prime minister Theresa May’s proposed divorce deal with the EU was rejected by MPs for a third time.

“Work is ongoing and remains a big priority and will be completed in the next few days in case it is necessary. But please God it won’t be,” he told the Annual Construction Law Conference.

The aim was to have the instruments “done a week ago”. But the delay in Brexit Day to April 12th at the earliest gave the Government “a little more breathing space”, he told the conference.

The Government has said that the 28 statutory instruments where secondary legislation is needed is to cover areas from recognition of driver licences and qualifications to immigration and data exchange.

In his speech, Chief Justice of the Supreme Court Mr Justice Frank Clarke warned that the “basic legal structure” underpinning judicial co-operation between Ireland and the UK would “disappear” in a cliff-edge Brexit.

He offered the example of Irish courts directing troubled children who require residential care to be treated in UK facilities under EU law as one area that could be affected after Britain leaves the union.

“There are a range of areas that may take some time to put in replacement measures and the shape of those replacement measures are not clear at this stage,” he told the conference at the Distillery Building near the Four Courts.

He expected a lot of “ad hoc” solutions being introduced and “judge to judge discussions” after Brexit until the parameters of the future relationship between the EU and the UK are agreed.

“I suspect it won’t be perfect,” he said.

He also warned that there will be “significant limitations” on Ireland’s ability to co-operate on judicial matters in bilateral arrangements with the UK because the State is bound by EU law.

The Lord Chief Justice of Northern Ireland, Sir Declan Morgan, told the conference he expected problems with co-operation, that judges, North and South, would not be able to solve in a hard Brexit.

Will the judiciary be cautious?

He agreed with Mr Justice Clarke that issues could be solved “in a practical and sensible way”. But he also warned that “the political temperature is through the roof” in Britain and Northern Ireland and it would be “difficult getting people signed up to do that without appearing to be interfering with the Brexit process”.

Judicial co-operation after a no-deal Brexit had “to be extremely carefully handled”, he said. Judges had to make sure they acted “within the territory that is available to us as judges and don’t stray into territory that at the moment politicians think they occupy or want to occupy”, he added.

As Sir Declan was addressing the conference,  Mr Justice Clarke handed him a note telling him Mrs May had lost her third attempt at getting her divorce deal passed by the House of Commons.

“She got closer this time,” he said, in response, to laughter from delegates. “She only lost by 58 votes. That’s a victory these days.”

Mr Woulfe expressed concern that the judicial co-operation envisaged in the EU-UK political declaration on a future relation was “quite narrow and quite limited” because it aimed to explore co-operation in matrimonial and parental responsibility but did not address civil and commercial matters.

He described the omnibus no-deal Brexit legislation, enacted this month but not yet commenced, as one of the most remarkable pieces of legislation ever passed because “so much work went into such a concentrated piece of legislation with everybody hoping and praying that it would never come into effect.”

Mr Woulfe said it was a “shocking waste of time and effort”, but that “it had to be done” to prepare for a hard Brexit which “happily looks less likely today.”

Still, he warned that the UK could “stumble” into a no-deal departure even though Westminster did not want it.

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