THE LAW
If we get in
R. A. CLINE
It would be a gross exaggeration to say that Britain's application to join the Common Market has created even a frisson among the lawyers. There is a lot of room for speculation and conjecture, but hard facts are few, how- ever disguised they may be in that pecu- liarly turgid style which seems to afflict writers the moment they touch on international law.
At one extreme of the conjectural spectrum it is possible to see the date of our entry as the birth of a system resembling the two-tiered American system of federal and state laws with a highly influential and politically dominant supreme court a la Washington, a system which would incidentally and without malice destroy the English common law system by erosion. At the other extreme it can be and has been said with equal authority that national and local laws would continue to enjoy their present supremacy with only a grudging surrender of sovereignty here and there in specific, limited fields of industry such as iron and steel, re- strictive practices and the like.
In practical terms it is as difficult to predict the future of the English law and the legal system, inside the Community, as it is to predict the political adjustments of power and sover- eignty that would be required of the British in honouring a new European commitment. With this warning in mind one or two daring generalisations are permissible. First, the Euro- pean Community is primarily an economic con- cept, it is a trading market, and the law is supposed to be the handmaid of trade. To that extent the British would be expected to `harmonise' their laws (the word is used in the Rome Treaty) with those of other members. But which laws? No one expects the law of libel (very peculiar, very technical and very English) to be changed even over a decade; it is too deeply rooted to be torn up, too closely interwoven with our attitudes to the press and freedom of speech. Equally our internal criminal laws look as though they would remain intact for the foreseeable future.
On the other hand, when nations trade freely with each other and frontiers cease to be barriers, the export and import of criminals is likely to keep pace with the increase in the tidal flow of goods, and this must give rise to its own special international problems. Thus, suppose that it is an offence to send packaged goods such as medical drugs into France unless there are certain statements on the package about the contents or a certificate enclosed in the package. Suppose, too, that an English firm sends off supplies to France and commits a breach of the French regulations, thus com- mitting an offence in France. Is the English firm safe in England? Can it be prosecuted in France or will England incorporate the French regulations in her own system so that the English police can prosecute the firm? Obvi- ously life will become intolerably complicated if there has to be extradition of an offender, however trifling the offence, to the country whose rules he flouted, or a prosecution in France in the absence of the firm.
Another trading example will show the way the wind is likely to blow. If a German com- pany today sells machinery to an English buyer in Germany, he can sue the Englishman in his own German courts. But when he gets a judgment in his favour, he still has to enforce that judgment against the Englishman, who in the meantime has retreated within the confines of his own country. So the German has to pursue his debtor to England and enforce the judgment here. There already exists some quite useful machinery between certain countries who have made reciprocal arrangements to re- spect each other's judgments; but not every country in the Common Market is prepared to agree to this kind of reciprocity. For sovereignty is still a touchy subject.
Now this is clearly a somewhat discouraging and chancy factor for the English exporter. The tariffs may be down but are these techni- cally tiresome barriers to survive? That, of course, depends on the developing attitudes to sovereignty; if the traders were to triumph over the politicians, it would become as easy to sue a Luxemburg agent in London and en- force the judgment as it now is for a Scotsman to sue an Englishman.
But more important barriers are bound to fall if the Market really develops into a trad- ing unity. The Court of the Common Market is the supreme judicial institution in the Com- munity and its decisions override those of the highest local courts, in our case the House of Lords, but only in common market matters such as restrictive practices, monopolies and so on. Now the continental lawyer has a wholly different approach to the business of inter- preting documents, agreements, statutes and deeds. The English judge considers the words of the document and little else. The Common Market courts permit themselves to investigate all the preparatory discussions, initial drafts and everything else that leads up to the final agreement. The English lawyer would certainly find himself obliged to 'harmonise' his rules and to think in the continental style.
Another principle which may suffer a change is that under which the English courts treat the tax and penal laws of foreign countries as unenforceable—a curiously unfriendly act in international terms but one which confers inestimable benefits on the citizen of the home country when he has entered into unwise arrangements with a foreigner. Penalties, duties, taxes and the like will surely come to be treated by all the courts of the Market as no less en- forceable than their own.
These are a few examples of changes which are likely to come about as the Community becomes more unified and tightly knit. Whether our legal system would undergo fundamental alteration, if we get in, is highly doubtful. The writ of habeas corpus would still run,, the bar- risters and the solicitors would continue their (justified) refusal to fuse; the wigs and gowns would not be put away. But if the aims of the Rome Treaty were to be achieved, some sub- stantial inroads would have to be made into hitherto impregnable areas of English law. Is the apparently indestructible immunity of the trade union in danger? Is the ancient doctrine of 'caveat emptor' to be buried? Are the English rules about freedom of contract, about the law of picketing, and of striking, now threatened? The answer, whatever it may be, lies with the aggrieved foreigner, and of course with the English whose belief in their own sovereignty would not necessarily be changed by the mere act of accession to the Treaty.
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