The relationship between the UK and the European Court of Justice (ECJ) was one of the key battlegrounds of the referendum campaign.
This week, we had the first glimpse of what that relationship might look like after Brexit. It’s come in the form of two “position papers” published by the government.
So what have we learned from the announcements?
The ECJ – also known as the Court of Justice of the European Union, or CJEU – is based in Luxembourg and is responsible for making sure that member states abide by EU laws.
In February 2016, Boris Johnson wrote: “you’ve got a supreme judicial body in the European court of justice [sic] that projects down on this entire 500 million-people territory, a single unified judicial order from which there is absolutely no recourse and no comebacks. In my view, that has been getting out of control.”
We spoke to Dr Lorand Bartels, Senior Counsel at Linklaters, Reader in International Law and Fellow of Trinity Hall at the University of Cambridge. We asked him to describe the UK’s relationship with the ECJ (a.k.a. CJEU).
He said: “EU law is a source of UK law and has priority over other sources of UK law. The UK is bound to respect the decisions of the CJEU as having the final word. Indeed, the final UK courts (e.g. the Supreme Court) are obliged to refer issues of EU law that might arise in a case to the CJEU.”
The government’s position papers raise more questions than they answer
The government’s paper on “Enforcement and Dispute Resolution” states that “In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU).”
At first glance, that seems fairly straightforward. But as ever, the devil is in the detail. The key word here is “jurisdiction”.
Dr Bartels says: “There is a basic distinction […] between jurisdiction and applicable law. Jurisdiction is about which court a party (the UK, or an individual) is before. Applicable law is the law that is applied by that court. The [government’s] position papers are right in saying that leaving the EU means leaving the jurisdiction of the CJEU. But that does not remove its role in deciding on the applicable law”.
In other words, leaving the jurisdiction of the ECJ doesn’t automatically mean that rulings by the Court won’t make their way into UK law. The government’s paper allows room for this to happen indirectly, in the style of existing arrangements between the EU and Canada.
In those set-ups, ECJ judgements trickle down through other tribunals. It’s not clear from the government’s paper whether that will happen with the UK – but it’s not been ruled out.
Beyond this, there’s also the major question of whether legal precedent set by the ECJ will continue to apply in UK law.
The President of the UK Supreme Court, Lord Neuberger, called on the government to clarify the issue earlier this month. And the Institute for Government says that parliament should give a clearer steer to judges to avoid “passing the buck to the judiciary”.
But according to Dr Bartels, this week’s position papers don’t provide a definitive answer because “this question has been reserved for future UK-EU agreement.” That means we’ll have to wait until Brexit negotiations conclude before we know the true scope of ECJ case law on the UK.
However, Justice Minister Dominic Raab said today that Britain will keep “half an eye” on EU case law, and vice versa, after Brexit. Some commentators have interpreted this as a “climbdown” from the government, and an indication that ECJ rulings could still affect the UK after Brexit.
Changing their tune?
In January this year, Theresa May said that after Brexit “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.
But critics have described the position set out in this week’s papers as a U-turn on the pledge. Is that fair?
Dr Bartels says “no”. The first paper, published on Tuesday, focuses on the technical detail of how EU and non-EU laws apply – it doesn’t discuss what Dr Bartels calls “the usual type of EU laws on, for example, bendy bananas”. This paper repeats the message that “the role of the CJEU in interpreting the domesticated EU instruments is still subject to agreement”.
The second paper, which looks at how we will implement the final Brexit deal in UK law, includes the phrase: “we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU).”
As we’ve seen, that magic word “jurisdiction” is consistent with the language that Theresa May has used in the past. On a strict technical interpretation, then, we haven’t seen a U-turn from the government this week.
But she may still struggle to reconcile this position politically, if Dr Bartels is right that the question of whether EU laws will still apply after Brexit remains unanswered.
The government has said that it wants the UK to leave the jurisdiction of the European Court of Justice. But it’s possible that ECJ rulings could still find their way into UK law after Brexit through another mechanism.
Technically, the language used in the government’s position papers is consistent with what Theresa May has said about the ECJ in the past. However, statements this week by her justice minister, Dominic Raab, suggest that ECJ rulings may still influence UK law after Brexit.