A Continued Role for the CJEU after Brexit - A Sensible Concession

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Jane Lambert

In her speech just under 12 months ago. the Prime Minister set out her objectives for negotiating our withdrawal from the European Union (see the Rt. Hon. Theresa May MP The government's negotiating objectives for exiting the EU: PM speech 17 Jan 2017 PM's Office).

The second of those objectives could not have been clearer:

"2. Control of our own laws
That means taking control of our own affairs, as those who voted in their millions to leave the European Union demanded we must.
So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
Because we will not have truly left the European Union if we are not in control of our own laws."

As I said before in this blog, this was a potential deal breaker (see  articles in this blog (see Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017, Has Mrs May done enough to break the Logjam? 24 Sep 2017, Fourth Round of Brexit Talks: Still a Logjam 28 Sep 2017 and Brexit Briefing - September 2017 3 Oct 2017).

Paragraph [38] of the Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union provides:

"This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens' rights Part."

Of course, Mrs May made the best of it in her statement to the House of Commons on the 11 Dec 2017:

"Mr Speaker, when we leave the European Union our laws will be made and enforced here in Britain not in Luxembourg.

So the EU has accepted that we will incorporate the Withdrawal Agreement into UK law.
And citizens’ rights will then be enforced by our courts - where appropriate, paying due regard to relevant ECJ case law, just as they already decide other matters with reference to international law when it’s relevant.
In the interests of consistent interpretation of citizens’ rights, we have agreed that where existing law is not clear, our courts – and only our courts – will be able to choose to ask the ECJ for an interpretation prior to reaching their own decision.
But this will be a very narrow remit and a very small number of cases.
And unlike now, they will not be obliged to do so. This will be voluntary.
The case itself will always be determined by the UK courts, not the ECJ. And there will also be a sunset clause so, after eight years, even this voluntary mechanism will end."

This is, of course, a very sensible concession and I commend the Prime Minister for making it.  But a climb down is still a climb down.

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