‘So long and thanks for all the fish’ (Douglas Adams)

I studied the law of international and European institutions at University.  It was 1973 and the UK had just joined the European Community (as it then was).  I was a committed European and, after I graduated, I hot-footed it to Brussels for a six-month placement with the European Commission.  It was the cross-Channel ferry in those days, no Eurostar and, thankfully, when I arrived, no Kinnocks.

Six months later I had begun to have reservations.  This was partly as a result of sharing an office in the Berlaymont with Monsieur Ernest.  Out of the office window I could see Belgian drivers valiantly trying to square the concept of a roundabout with the rule that they had to give priority to traffic coming from the right.  M. Ernest was a surly separatist from Alsace-Lorraine who regularly threw his plate of choucroute at the wall of the staff canteen muttering ‘Ce n’est pas la vrai choucroute alsacienne.’  If the introduction of a roundabout caused mayhem, and the composition of choucroute was so controversial, perhaps the European project was not going to be all plain sailing.

Another factor was that my first task as a would-be Eurocrat was to translate ten pages of regulations on the construction of blast furnaces from German into English.  I was the obvious choice for this.  After all, I had studied German for ten weeks in the Sixth Form, the Bessemer process of steel-making (patented in 1856 and by now obsolete) had been part of my A level history syllabus and I could speak English like a native (because I was one).  I still shudder to think what I may have been responsible for blast-furnace-wise because I didn’t know my Blasdüse from my Ellbogen.

I have other fond memories of things European, for example, chips with mayonnaise, and being stuck for 36 hours in Reykjavik airport in early 1992 with a German MEP whose aim was to travel around all the Member States without showing his passport brandishing a model of a border-crossing checkpoint.  Iceland wasn’t even a member of the EU.  If the MEP had tried to carry out his stunt in the UK he would probably have been taken away to a detention centre or sectioned under the Mental Health Act but then the Brits and the Germans have always seen things differently.

And now we’re leaving the European family.  No more blaming the other children for the shape of our bananas.  In future, we’re going to have to behave like grown-ups.  ‘Stand up straight Boris and take your hands out of your pockets when I’m talking to you’.

These are interesting times for a lawyer, particularly a tax lawyer.  Lord Denning was probably the first to foresee how all-pervading the effects of EU law on the UK’s legal system would be.  In HP Bulmer Ltd v J Bollinger AS (No 2) [1974] EWCA Civ 14 he famously said:

‘… when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back…’

The Treaty being referred to was the ‘treaty relating to the accession of the United Kingdom to the European Economic Community and to the European Atomic Energy Community’, signed on 22 January 1972.  The UK is a ‘dualist’ state.  In dualist states a treaty is not part of domestic law until it is incorporated into that law by domestic legislation.  The European Communities Act 1972 gives effect in UK national law to the UK’s obligations and duties under the EU Treaties.  The European Communities Act 1972 will need to be repealed as part of the implementation of Brexit.  Many EU rules will then cease to apply here, unless temporary provision is made to keep them in place until they have been reviewed.  One interesting question is what will be the status in the UK of past and future decisions of the European Court after Brexit takes place?

I suspect that the process of divorce which will start once the UK invokes article 50 of the Treaty on European Union is not going to be the ‘conscious uncoupling’ favoured by Hollywood celebrities.

Shoulders back, chin up and into the unknown we go.  Perhaps a bit scary but exciting all the same.

Tax lawyer specialising in business tax, SDLT and VAT

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