Brexit gets closer

21 November 2018

Withdrawal Agreement redraws the government’s red lines on ECJ role

Deal or no deal, Brexit will ‘undoubtedly launch a thousand writs and more’, Edwin Coe senior partner David Greene writes in NLJ this week.

‘If a no deal scenario eventuates, the profession will respond, but the uncertainty attached to it is likely to lead to much litigation,’ he says.

‘Even in prospect of a deal, Brexit private law litigation has already commenced, with an EU institution seeking to leave London trying to establish Brexit as a frustrating event under the lease.’

The government published the 585-page draft Withdrawal Agreement last week, outlining the UK’s departure from the EU on 29 March 2019, including the financial settlement, citizens’ rights, fishing rights and resolution of disputes. The transition period, also known as the implementation period, runs until 31 December 2020 during which time the UK will abide by EU rules and remain under European Court of Justice (ECJ) jurisdiction but will not be a member of its institutions.

According to Greene, the draft Brexit deal continues and even increases the ECJ’s role during the withdrawal period—despite the government’s ‘red line’ on the ECJ.

Greene, NLJ consultant editor and committee member of the London Solicitors Litigation Association (LSLA), says: ‘That red line was soon crossed in relation to citizens’ rights in which the court has a formal role for a finite period of eight years. The draft Withdrawal Agreement sees the ECJ not only continuing its role in the withdrawal period but increasing it to deal with disputes about the agreement itself.’

Greene represented one of the litigants in the Art 50 case at the Supreme Court last December, which resulted in Parliament being promised a vote on the final deal.

In a separate ruling this week, the Supreme Court rejected a government bid to halt reference to the ECJ of the issue of whether the UK can unilaterally revoke Art 50, thus abandoning Brexit. The ECJ hearing is due to take place next week. The case was brought by Scottish politicians and Jolyon Maugham QC. The UK government has said the case is unnecessary because it will not revoke Art 50.


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