Senior lawyers have welcomed the government’s acknowledgment that the European Court of Justice (ECJ) could play a role in post-Brexit dispute resolution with the UK.
The government rode into controversy this week after it said dispute resolution between the UK and EU could make reference to ECJ caselaw arising after Brexit, in its position paper, Enforcement and dispute resolution—a future partnership paper.
Prime Minister Theresa May has insisted the UK will ‘take back control of our laws’. The Repeal Bill provides that ECJ caselaw up to the point of departure only will have binding status.
David Greene, senior partner at Edwin Coe, said: ‘The headline to the news about the government's position paper on civil justice has been to highlight a "climbdown" on the future role of the ECJ after Brexit.
‘The government set two red lines for the Brexit negotiations. One of those was that the ECJ would no longer have any binding influence on the law of the UK. Any lawyer would have told you (as we all did) that that was not going to work, particularly when there is now bound to be a transition period. Most practitioners will see this position paper as the marriage between slogan politics and the legal reality arising from 40 years of integration with the European Union.’
Richard Bunce, litigation partner at Simmons & Simmons, said: ‘The government asserts that leaving the EU will mean an end to the “direct jurisdiction” of the ECJ.
‘It therefore appears tacitly to accept that the ECJ will continue to have an indirect role and therefore some influence over UK legislation and UK court decisions following Brexit. The paper itself is dealing specifically with disputes over the interpretation and implementation of the agreements entered into between the UK and the EU to give effect to Brexit.
‘Beyond providing a number of examples of potential dispute resolution arrangements taken from other (primarily trade) agreements, it does not deal in any specific way with the practicalities of using such arrangements. Any assessment as to the effectiveness or otherwise of the proposed solutions will therefore have to await the detail.’
The government paper lists several options for post-Brexit dispute resolution, including a Joint Committee, reporting and monitoring requirements and provisions for arbitration. One potential obstacle, however, is that the EU and its Member States cannot be bound by an arbitration panel on matters of interpretation of EU law.
Charles Brasted, partner at Hogan Lovells and co-leader of the firm's Brexit Taskforce, highlighted a ‘significant gulf’ between the positions of the UK and EU on the role of the ECJ post-Brexit.
‘The EU's stance, that it can be bound by a dispute settlement body other than the ECJ in only very limited circumstances, is fundamentally at odds with Theresa May's commitment to remove the influence of the ECJ from the UK legal system,’ he said.
‘It is likely that a constructive result will require compromises on both sides. It appears therefore that the ECJ will continue to play an ongoing but "indirect" role in the UK legal system after Brexit. That role will likely extend to influencing the interpretation and enforcement of the UK and EU's obligations in the agreements they reach as part of the Brexit process.’
Chair of the Bar, Andrew Langdon QC, said: ‘The paper raises more questions than it seeks to answer on what is a matter of crucial significance to the UK.’
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