What was a trickle of Brexit negotiating positions is now a fast-flowing stream, difficult to keep pace with. Everything affects lawyers in one way or another.

So as not to be overwhelmed, we should start with what affects us as a profession; next, what affects the justice sector overall; and only then, the wider field on which lawyers may give substantive advice in the future to their clients.

This week, it was possible to compare the two sides’ negotiating positions on what are called ‘Ongoing Union judicial and administrative proceedings’, which principally means the role of the Court of Justice of the European Union (CJEU), and also administrative proceedings before EU institutions, such as competition cases.

If we start with the direct effect on lawyers, we can be pleased that the UK negotiation position refers to us several times, always making the same point: that the role of UK registered lawyers needs to be addressed in the negotiations, to be sure that they can continue to practise before the CJEU for the period during which the CJEU continues to have competence over the UK after withdrawal. The EU negotiating paper does not address this question at all.

But for how long will the CJEU continue to have competence? That proves tricky, and the two sides’ answers are starkly different:

  • The UK says: ‘The UK does not consider that the CJEU should remain competent to rule on cases on which it has not been seized before the day of withdrawal, even where the facts arose before withdrawal.’
  • The EU, on the other hand, says: ‘The Court of Justice is competent to adjudicate in preliminary references submitted by courts in the United Kingdom after the withdrawal date relating to facts that occurred before the withdrawal date’.

We learn some more about the UK position from article 6 of the European Union (Withdrawal) Bill. Decisions of the CJEU taken after withdrawal (not before) can be disregarded by the UK courts after withdrawal. The strongest injunction on the UK court in such a position is that it may have regard to the CJEU decision if it considers it appropriate to do so.

We will doubtless all have views on the rights and wrongs of either side’s position. It will not be settled finally by morality, but by politics. On the question of morality, though, the UK position is steering close to, if not actually crossing, the principle against retrospective legislation. A person should not be made to suffer in law, criminal or civil, for an act which was not unlawful when committed. But it is perfectly possible to envisage a situation where a UK court comes to a different decision to the CJEU on a set of facts that arose before withdrawal, and where the CJEU made a decision on similar facts also after withdrawal. Where is the justice in that for the person who was acting in the UK under EU law at the time?

The UK remains subject to the European Convention on Human Rights. Despite the Secretary of State’s airy view on the first page of the bill that its provisions are compatible with Convention rights, I look forward to learned articles and future litigation on this point. Retrospective legislation is a complicated area, much litigated over in Strasbourg.

As for politics, the same position regarding the CJEU as outlined in the negotiating paper is included in article 6 of the Withdrawal Bill. If the bill becomes an act before the negotiations are complete, and if the government comes to a different settlement on the CJEU in the Withdrawal Agreement, then presumably the act will have to be changed immediately after being passed. We know that the role of the CJEU is one of the many contentious issues in the negotiations, and the government’s current position may have to change in relation to certain specialist areas – for instance, cooperation in the field of criminal justice. It seems strange to see a negotiating position, before any negotiations have actually taken place, already incorporated in a bill before parliament.

On non-CJEU administrative proceedings, which may affect the work of more UK lawyers, for instance those involved in competition, food safety or aviation enforcement, the UK government does not mention the role of lawyers in pending proceedings after withdrawal. Nor does it define a cut-off date for the definition of pending proceedings, as it does with the CJEU. Rather, it says that different proceedings will require different principles applied.

The EU on the other hand is clear, as with the CJEU, that facts arising before withdrawal must continue to engage the competence of EU bodies after withdrawal.

Battle is commencing. Lawyers should judge these and future issues by their impact on justice.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council

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