The influence of the European Court of Justice (ECJ) post-Brexit
Over a year ago Theresa May, stated at the Conservative Party Conference that 'When we leave the EU we will be leaving the jurisdiction of the ECJ.'
In her Florence speech on 22nd September 2017 the Prime Minister indicated that she wanted 'the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation', and on 9th October she confirmed that the UK would continue to be bound by ECJ rulings for at least part of the Government's proposed Brexit transition.
The issue is once again at the forefront of Brexit negotiations this week as the UK and EU discuss what is to be done in relation to the border between the Republic of Ireland and the UK. David Davis has been keen to stress that any proposed "regulatory alignment" between the UK and the EU at the border would mean rules of "mutual recognition", but not continued UK membership of the Single Market.
The question is how those rules of "mutual recognition" would be enforced where an overarching Court or Tribunal (such as the ECJ or the EFTA Court) appears to be a politically unacceptable outcome for the UK.
Both Lady Hale, the new President of the UK Supreme Court, and her predecessor, Lord Neuberger, have called on Parliament to give judges 'as much clarity as possible' on the UK's relationship with the ECJ after Brexit. In light of developments this week, the proposed relationship appears to be even less clear. In this article we consider the potential impact on the UK Government's promise to 'take back control'.
The Luxembourg-based Court of Justice of the European Union (known informally as the European Court of Justice or ECJ) is the highest court in Europe and the final arbiter on the interpretation of EU law. One Judge from each EU member state, together with 11 advocate generals elected by the national governments, interpret EU law and can issue binding rulings over national courts.
The ECJ's decisions have influenced many areas of English case law (for example, employment rights, environmental, consumer protection and jurisdiction) and similarly, the English Courts have looked at the wording of EU Directives to determine the UK legislation which was passed to give them effect.
Perhaps in an attempt to preserve continuity, the Government’s White Paper on the Great Repeal Bill (properly known as the 'European Union (Withdrawal) Bill') proposes that ECJ decisions before Brexit will have the status of Supreme Court decisions. The Bill is designed to convert EU law (as it stands at the UK's 2019 formal exit date) into UK law.
Interestingly, the draft Withdrawal Bill, specifies at Clause 6 that UK Courts will not need to have regard to anything done on or after exit day by the ECJ, by another EU entity or by the EU; but may do so if this is considered appropriate. As mentioned above, the most senior judges in the UK have expressed their concerns over this approach, as it may give rise to uncertainty and inconsistent applications of ECJ rulings in the UK.
Recent developments suggest this may not be totally realistic. The Bill is not set to have a smooth passage due to the number of proposed amendments and the committee stage has been extended considerably to allow these to be addressed.
The ECJ's role post-Brexit
The Government published its position paper on 'Enforcement and dispute resolution' in August. Here it explains that the ECJ's jurisdiction in the UK will end at the point of our withdrawal from the EU, while suggesting ways in which the ECJ will continue to influence UK legislation during the mooted transitional period post-March 2019.
Unsurprisingly, the EU has insisted that any future agreements on citizens’ rights and access to the Single Market must continue to be policed by the ECJ. Consequently, this could result in the UK following ECJ judgments or having to refer matters to the ECJ for determination for as long as the UK seeks to cooperate with the EU on the basis of EU rules.
Where does this leave the UK?
As a common law system which relies on legal precedent, a significant amount of English case law is now derived from ECJ rulings. Those decisions (to the extent that they apply to the interpretation of UK legislation or common law rules) will continue to be applied, at least in the near future. It is possible that the English Courts may start to move away from ECJ decisions once the UK is no longer bound by EU law and that such decisions may be superseded by post-Brexit legislation. However, this is likely to be a gradual process. It is also reasonable to envisage that the interpretation of EU law and the ECJ's influence over UK Courts will still have some role to play in the UK, at least in relation to citizens' rights.
As a result, UK businesses and other organisations are well advised to continue to plan to comply with ECJ rulings and legislation that has originated from the EU. Due to the English Court's heavy reliance on precedent and the proposed adoption of EU law into UK statute (according to the Withdrawal Bill), most changes to UK law should be implemented at a manageable pace.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.