Following the unexpected outcome of the June General Election, there have been calls from some commentators for Teresa May to soften the ‘hard’ Brexit stance that she had adopted during the campaign. However, the jurisdiction of the European Court of Justice (CJEU) is one Brexit agenda item on which the Prime Minister doesn’t appear inclined to compromise.
If the rhetoric becomes reality, the CJEU will have no jurisdiction over UK law and, whilst pre-Brexit CJEU case law will be given legal status equivalent to the judgments of the UK Supreme Court, its case law beyond Brexit will not be considered in the interpretation of UK law after Brexit.
Is this still a red line and, if so, is it realistic?
The EU is standing firm too, insisting that the rights of EU citizens already resident in the UK must be underpinned by the CJEU for the duration of their lifetime. Mrs May has promised to protect the legal rights of EU citizens resident in the UK but insists that this can be done through UK law alone with the possibility of an establishment of a new oversight body to deal with any disputes. However, any such institution is likely to be required to include European judges and will have to be compatible with EU law.
Further uncertainties linger surrounding the post-Brexit legal landscape.
It is not clear to what extent case law, EU Treaties and policy objectives will be applied to the interpretation of EU-derived laws. Equally, it remains to be seen if UK judges will depart from pre-Brexit CJEU judgements and questions remain over what will become of cases opened prior to Brexit but with judgement pending after Brexit. Furthermore, will the CJEU have any involvement in resolving cross-border disputes post-Brexit or will its jurisdiction be considered as part of any transitional arrangements?
An analysis paper issued by the Institute for Government offers some answers. It proposes that the Repeal Bill provide guidance on the weighting that UK courts should give to future CJEU decisions, thereby giving legal certainty to businesses and individuals. This measure would also give UK judges some protection from being criticised for making autonomous decisions that are perceived to ignore the referendum outcome. As to what form this guidance should take, the IfG suggests the middle-ground by recommending that CJEU decisions be regarded by judges as persuasive or helpful rather than binding or irrelevant.
Meanwhile, there are some unlikely sources of support for Teresa May’s opposition to the CJEU maintaining its sphere of influence over UK courts. Franklin Dehousse, a Belgian lawyer and former CJEU judge, believes that it will create ‘a legal vipers nest’ as the UK wouldn’t be represented by it and, moreover, its judges would be appointed by its potential opponents. Currently, the CJEU does not have jurisdiction over any ‘third’ country, i.e. those outside the EU, unless the latter gives prior consent.
Ironically, the debate on the role of the CJEU post-Brexit may be rendered irrelevant by its own ruling on the validity of any deal struck between the EU and UK in relation to existing EU Treaties. There is a precedent – in 2014, the CJEU scuppered the accession of the EU to the European Convention on Human Rights for fear of jeopardising its supremacy over the interpretation of EU law.
Even if the Brexit deal is allowed to live and breathe, EU-made laws will continue to be applied by UK judges following departure as they will be imported onto the Statute Book by the Repeal Bill. Given the global nature of the economy, it will be business as usual for companies trading with the EU as they will have to continue to abide by EU rules, regulations and standards, regardless of any deal that is struck, in such instances. Equally, there will almost certainly be a post-deal transition period until the new UK-EU relationship is fully established, during which the UK will be expected to abide by EUCJ rulings.
In conclusion, and perhaps to the Prime Minister’s disappointment, it would appear that the CJEU won’t be disappearing from the UK legal scene any time soon.
Article published: 11th July 2017
