But Justice Minister says UK will need to keep “half an eye” on its rulings in the future
As part of its policy on Brexit, the government today published its views on the role of the Court of Justice of the European Union (ECJ) in the UK.
In its much anticipated ‘future partnership paper’ on enforcement and dispute resolution, Theresa May’s government seeks to reassure Brexit supporters that the ECJ will have no place in the UK’s “domestic legal order.” It states:
EU law has direct effect within the legal orders of the Member States, a principle to which the UK gives effect through the European Communities Act 1972 (ECA). When the UK leaves the EU and repeals the ECA, the EU Treaties, the jurisdiction of the CJEU and the doctrine of direct effect will cease to apply in the UK. This means the question of domestic implementation of UK-EU agreements will be addressed through the UK’s domestic legal order.
However, there is still the thorny problem of what body will have jurisdiction to hear any disputes between the UK and the EU over the withdrawal agreement, the main legal agreement which will govern Brexit, or what body/how rights and obligations given to individuals or businesses under any agreement will be enforced.
The paper argues that: “there is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements falls under the direct jurisdiction of the CJEU.”
So far, so many ‘nos’.
It may well be, however, that the ECJ ends up being the most logical place for such enforcement or dispute resolution to take place.
The paper also does not settle the question of whether UK courts should pay attention to the decisions of the ECJ on the existing body of EU law, much of which will continue to be part of the UK’s legislative make-up.
Justice Minister Dominic Rabb’s reference to judges keeping a “half an eye” on ECJ rulings on BBC Radio 4’s Today programme has led many to believe that there will still be a residual place for the ECJ in UK case law.
Indeed, the Telegraph today argues that the ECJ will, in fact, remain the ultimate arbiter for many “British disputes”.
Shadow Brexit secretary and former human rights lawyer, Keir Starmer, sees this paper as a U-turn on May’s promise that she would, as she said last year: “take back control” of UK laws and “bring an end to the jurisdiction of the European court of justice in Britain”.
In a release yesterday, Starmer said:
Ending the ‘direct jurisdiction’ of the ECJ is potentially significant. This appears to contradict the red line laid out [by] the prime minister … which stated there could be no future role of the ECJ and that all laws will be interpreted by judges in this country.
The latest round of official Brexit talks will kick off in Brussels next week.
Read the future partnership paper in full below:
For all the latest commercial awareness info, and advance notification of Legal Cheek’s careers events, sign up to the Legal Cheek Hub.
