UK Lords: Is there is a role for the ECJ post-Brexit?

The UK government has said that leaving the European Union will “bring about an end to the direct jurisdiction of the Court of Justice of the European Union”.

The House of Lords EU Justice Sub-Committee has this week launched a new inquiry on this issue and the question of enforcement and dispute resolution post-Brexit.

Following a session with four senior retired judges on 21 November, the committee is now issuing a formal call for evidence. Issues under consideration include:

  • Whether there could be a role for the CJEU in the UK post-Brexit.
  • The most appropriate method of enforcement and dispute resolution in respect of the Withdrawal Agreement and subsequent partnership arrangements with the EU.
  • How the Government can deal with questions relating to EU law in the domestic courts post-Brexit and during any period of transition.
  • The impact Brexit will have on the UK’s ability to influence the development of the law in other jurisdictions including the EU and the United States.
  • If UK citizens should have a direct right of access to any new enforcement or dispute resolution procedure.

Chairman of the committee Baroness Kennedy of The Shaws said: “The evidence that we received from four of the UK’s most senior former judges highlighted the dangers of legal uncertainty post Brexit.

“It was apparent that the judges had significant concerns about the operation of ‘retained EU law’ in the UK under Clause 6 of the European Union (Withdrawal) Bill.

“The former Lord Chief Justice, Lord Thomas of Cwmgiedd, warned that there could be a ‘very real problem for future judicial independence and the rule of law if this is not clarified.’

“In addition to concerns about the wide discretion that might be given to the judiciary to take what might be seen as ‘political’ decisions, it is also far from clear that the provisions relating to the interpretation of retained EU law under Clause 6 of the bill allow for a smooth transition.

“The bill was clearly not drafted with a transitional period in mind. It would preclude references to the Court of Justice of the European Union, and not require UK domestic courts to take account of post-Brexit EU law, despite the fact that the UK may continue to be effectively bound by EU law during the transitional period.

“Going forward, the government will have to ensure that it can agree a clear, certain and robust enforcement mechanism to ensure that any rights and obligations under the Withdrawal Agreement (and subsequent partnership arrangements with the EU) can be upheld in the event of a dispute. The committee is seeking expert evidence on the most appropriate way of ensuring that dispute resolution procedures post-Brexit can be dealt with efficiently and effectively.”

The committee asks for written submissions to be received by Friday 19 January.