Peers review dispute resolution & enforcement post-Brexit

A Lords’ committee led by Helena Kennedy QC has issued a stark warning on the consequences of leaving the EU without effective replacement dispute resolution systems in place.

In a report published this week, 'Dispute resolution and enforcement after Brexit', it warns that disagreements with the EU could be ‘potentially insoluble’ and individuals and businesses left without any ability to protect and enforce their rights. Moreover, without the jurisdiction of the Court of Justice of the European Union (CJEU), the government will have to agree multiple dispute resolution procedures.

Chair of the EU Justice Sub-Committee, Baroness Kennedy of The Shaws, said: ‘We are really worried now about the lack of time.

‘This is difficult stuff, and unless both sides show real flexibility in the coming months, not only could the rights of businesses and individuals be threatened, but the whole Brexit withdrawal agreement could end up being potentially unenforceable.’

When the UK leaves, the government has said it will end the direct jurisdiction of the CJEU. The committee oppose leaving the CJEU to interpret ‘the entirety’ of obligations under the withdrawal agreement. This would be ‘problematic’, it says, due to the ‘perception of bias’. However, the CJEU has the final say on interpretation of EU law, which reduces the scope for innovative solutions.

Baroness Kennedy said: ‘The government claimed that continuing the jurisdiction of the [European] Court of Justice was a “red line”.

‘But it is increasingly clear that operating without cross border courts is impossible if we want to trade, have secure borders, cooperate on crime and enforce agreements with the EU as a future partner. It now seems we will have to have a whole set of courts and quasi-courts rather than just one.

‘In fact, even the government now accepts that there may have to be some give and take: if the UK wants to stay in key EU agencies, such as on medicines or aviation, it will have to “respect the remit” of the CJEU.’

As well as covering issues relating to Northern Ireland, mutual recognition of judgments, the transition agreement, the withdrawal agreement and the European Arrest Warrant, the wide-ranging report delves into the impact of Brexit on the influence of the UK legal system. It concludes that the loss of the ability to affect the development of EU case law will have a negative impact on the international standing of the English common law system.

The Law Society is also opposed to the CJEU having sole direct jurisdiction over the deal struck between the EU and UK. It published a paper this week, ‘Brexit: Options for a future UK-EU Dispute Settlement Mechanism’, urging the government to create a bespoke, UK-based mechanism for individuals and organisations to resolve disputes relating to the deal.