The Brexit white paper and the role of the CJEU

Last week, I wrote about the likely outcome for lawyers’ practice rights in the EU in the white paper on Brexit before the white paper itself was published, basing myself on the government statement issued after the Chequers agreement. The prognosis was not good, because the government was prepared to give up current access on services, and hoped to rely on World Trade Organisation rules at a time when president Trump is doing his best to undermine them.

The eventual white paper proved the first part of the prognosis true, and as for president Trump’s recent statement on a Brexit trade deal – well, the words in his Sun interview spoke for themselves, even if he later tried valiantly to row back on them. Many people are now saying that the present time is the worst occasion to launch oneself into trade deals with the USA and general reliance on the WTO system.

This week, I want to examine the impact of the white paper on the role of the Court of Justice of the European Union (CJEU). It has long been clear that we would not escape from the CJEU, and that we would end up with a hybrid system, partly in and partly out of its jurisdiction.

The white paper envisages two scenarios where the CJEU would continue with some sort of role. First, there is the common rulebook, which the government proposes for goods including agri-food, covering only those rules necessary to provide for frictionless trade at the border. This covers quite a chunk of common rules. For such rules, the UK will commit by treaty – by treaty, mind - that its courts will pay due regard to CJEU case law. 

The white paper concedes that only the CJEU can bind the EU on the interpretation of EU law, and, therefore, where there is a UK-EU dispute over the common rulebook, there should be the option for a referral to the CJEU for interpretation. This reference will no longer be able to be made in the current way through a preliminary reference, but must be made by one of the two bodies proposed by the UK to resolve disputes between the two parties, either by mutual consent through the Joint Committee, or by the binding arbitration panel, both of which are part of the proposed settlement mechanism. (This mechanism resembles a Heath-Robinson-like structure designed to keep the CJEU as far away as possible without actually excluding it altogether.)

As a fig-leaf to cover the government’s insistence that we are really, really leaving the CJEU’s jurisdiction, the eventual resolution will have to respect the principle that the court of one party cannot resolve disputes between the two. What this means in the circumstances where a reference has been made as above by one of the two bodies to the CJEU is not clear.

The second scenario where the CJEU has a role is in relation to EU bodies and agencies. The white paper says expressly that the UK will continue to participate in certain of these bodies and agencies, which has been clear for some time. As part of membership, the UK will respect the remit of the CJEU. If there were a challenge to a decision made by an agency that affected the UK, the white paper concedes that this could be resolved by the CJEU.

Again, the government quickly notes that this would not involve giving the CJEU jurisdiction over the UK, which is bizarre in the circumstances, and can only mean that we always retain the right to terminate our membership of that particular body or agency if we don’t like the CJEU judgement in question.

There is plenty of hedging. So, the CJEU would have a role only in relation to the interpretation of those EU rules to which the UK had agreed to adhere as a matter of international law. That seems obvious. It will also be important for both parties to encourage and facilitate dialogue between the judiciaries of the UK and the EU. The Joint Committee is urged to keep under review the case law of the senior courts of both the UK and the CJEU, where relevant to the interpretation of the agreements. If significant divergences are found, the Joint Committee could be empowered to act to preserve the consistent interpretation of the agreements.

The word ‘respect’ is used frequently in relation to the UK courts – indeed, it is a common word throughout the white paper. Respect our courts, respect our autonomy, respect our referendum. I have never known a period in my life when the UK courts have not been respected, in terms of being admired, and so it is odd to see the government using that term so often. If the negotiations are to succeed, should we betray this insecurity?