Despite the government’s ‘red line’ on the European Court of Justice (ECJ), the draft Brexit deal continues and even increases the ECJ’s role during the withdrawal period, according to Edwin Coe senior partner and NLJ consultant editor David Greene.
The 585-page draft Withdrawal Agreement published last week outlines 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 the UK will abide by EU rules and remain under ECJ jurisdiction but will not be a member of its institutions.
Greene, a committee member of the London Solicitors Litigation Association (LSLA ), said: ‘The role of the ECJ in the formal establishment of UK law has been a bone of contention between the UK and the European Council since the prime minister put a red line through the continuing part that the ECJ will play in the UK.
‘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 Article 50 case at the Supreme Court last December, which resulted in Parliament being promised a vote on the final deal.
Meanwhile, City lawyers have expressed cautious optimism on the draft deal.
Charles Brasted, partner in the Hogan Lovells Brexit Taskforce, said the agreement ‘has put the wheels of a potential orderly Brexit into motion’ and ‘businesses can afford some cautious optimism’.
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