Post-Brexit dispute resolution: a dog’s dinner

After the prime minister’s much heralded Brexit speech on Friday last week, we are a little further forward in understanding the government’s view of our post-Brexit arrangements. I shall focus here just on dispute resolution, to understand the extent to which we will be taking back control of our laws, one of her stated aims.

From the start, she conceded that ‘even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us … When we leave the EU, the Withdrawal Bill will bring EU law into UK law. That means cases will be determined in our courts. But, where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts.’

Former senior members of the judiciary have already warned about the dangers of the judiciary having too wide a discretion in this context, which will expose judges to fierce and partisan attacks – enemies of the people once more – when making future decisions. For instance, what exactly does ‘where appropriate’ in the previous paragraph mean?

The Prime Minister moved on to EU agencies, saying that ‘if we agree that the UK should continue to participate in an EU agency the UK would have to respect the remit of the ECJ in that regard’. Later, she mentioned three EU agencies as examples of agencies of which the UK would want to remain a part (there may be others) - the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency.

She specifically mentioned Switzerland’s associate membership of the Aviation Agency, and its ability to issue airworthiness certifications, following which disputes are dealt with in Swiss courts. She added hopefully that that ‘could permit UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ’. But Switzerland, though a member of the Aviation Agency and so subject to ECJ rulings in that context, is not a member of the Medicines or Chemicals Agencies, and the EU does not in general like the Swiss model.

Sensibly, she next said that we will need an arrangement for data protection. That has always been obvious. She clarified the position by saying that ‘we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one-stop-shop’ mechanism for resolving data protection disputes.’

The one-stop-shop mechanism was introduced by the General Data Protection Regulation, coming into force on 25 May 2018. It permits organisations carrying out cross-border personal data processing activities to deal with only one supervisory authority in the future, called the ‘lead supervisory authority’ - as opposed to the current position where organisations with several establishments in the EU are confronted with inconsistent decisions by various local supervisory authorities. The aim is to ensure uniform application of the GDPR.

By whom will those lead supervisory authorities in the EU, dealing with UK data, be bound? It can only be by the ECJ (or CJEU as we should more properly call it). If we are brought within the one-stop-stop mechanism, and the UK is deemed under the GDPR to be the home of the lead authority (at present it does not apply to establishments outside the EU), will the EU permit the UK courts to govern EU data in this way? As was always predictable, it seems as if the CJEU/ECJ will continue to govern UK cross-border data processing, which covers a vast amount of our data.

What about disputes which arise regarding the future trading relationship in general? The Prime Minister was clear that ‘the ultimate arbiter of disputes about our future partnership cannot be the court of either party.’ In other words, it will not be the CJEU, but it will not be the UK Supreme Court, either. We are escaping the jurisdiction of the CJEU to be subject to another jurisdiction altogether, in which we will participate but which we will not control.

There are many issues to be settled about this new dispute mechanism. The first and most important is whether individuals and businesses will have recourse to it, as they do now to the CJEU if rights are breached – or will it just be a mechanism for the governmental parties to the agreement to use? We know next to nothing about its make-up or reach.

This is a dog’s dinner of jurisdictions – sometimes EU, sometimes UK, sometimes a new mechansim altogether, which is neither UK nor EU, depending on the area of law. Red lines, taking back control, rule-makers not rule-takers, vassal state – decide for yourself.