Ending the jurisdiction of the EU courts in the UK post-Brexit

Ending the jurisdiction of the EU courts in the UK post-Brexit
The Prime Minister, Theresa May’s invocation of a ‘Global Britain’ outside the EU single market and free from the authority of the Court of Justice of the European Union offered some headline clarity on the government’s current intentions in managing Brexit. With a forecast of growing divergence, Adam Cygan, Professor of Law at the University of Leicester, looks at the mechanisms by which the UK will de-couple itself from EU courts.

 

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What is the significance of ending the jurisdiction of EU courts in the UK?

Of the two key policies outlined by the Prime Minister as being at the heart of Brexit, the first is to regain parliamentary sovereignty and the second is an end to the jurisdiction of the Court of Justice of the European Union. Taken together it is a blueprint for repatriation of competences back to the UK so that in future it is the UK Parliament that makes and applies UK laws, with UK laws interpreted and enforced by UK courts. Those areas of competency which currently reside and are defined at EU level will be determined in the UK post-Brexit—first by Parliament and then by UK courts.

What will it mean for UK law in practice?

The first issue is that the objective of the EU courts is to promote EU integration and ensure that law laid out in the EU Treaties is observed and given effect. UK courts will no longer need to give effect to those laws which have been further developed through the rulings of the EU courts, including notable examples such as direct effect or state liability, and used by national courts to make sure EU law is observed. This requirement will completely disappear.

The second issue arising is that when these competences are repatriated, UK courts are no longer required to give EU interpretations of law and principle. A useful example would be the Working Time Directive 2003/88/EC which covers the 48 hour maximum working week and has subsequently been defined by EU case law. Taking the example of junior doctors, the Court of Justice ruled that where a doctor was at work and ready for work, but not visiting a patient, they were nonetheless fulfilling part of their 48 hours. EU judgments have broadly provided restrictive interpretation of these employment laws and while the UK government will presumably preserve the 48 hour working week it may well opt to count the hours differently—for instance, only counting those hours where a doctor is with a patient. National courts may develop this further or, conversely, may simply decide to track the EU jurisprudence despite being outside of its jurisdiction.

At this stage we simply do not know what the consequences will be. The Great Repeal Bill will adopt and continue to apply EU law broadly as it stands in the UK, but as EU laws change, at least according to recent remarks by the Department for Exiting the EU—the government will look at those laws it feels are in need of prioritising and of reform. In the early stages post-Brexit there will be little likely impact in the difference between UK and EU law, but as legislation develops the divergence will likely grow.

In what areas could the change be most problematic?

This is hard to say with any certainty because we do not yet know the nature of the arrangements the UK will have post-Brexit. If the UK is outside of the EU single market then it will certainly have more freedom to regulate in its own interests but if there are continued relations with the single market (eg if ultimately the UK remains within it or has opt-in access for sectors including finance and automotive industries) there will still have to be compliance with EU standards and EU requirements. In that scenario, while the authority of the Court of Justice of the European Union may not apply (the issue remains unclear as yet), national courts will have to ensure their judgments at least follow the EU courts to allow organisations and businesses a stable trading environment in the event of litigation.

Although there is little confirmed at this stage, I feel that in most instances it is possible to separate competences in two ways:

Outward-facing competences

For regulatory standards of goods and services that are traded with the EU, the law will stay as it was and comply with the EU rulings.

Inward-facing competences

Those competences engaging, for example, employment and immigration law, where the UK will have more freedom to determine policy and where it is more likely to see a divergence between EU and UK norms and standards.

Will there be any trend in EU law once UK judges no longer inform decisions in the EU courts?

This is unlikely. We don’t know how individual judges vote on their cases—UK judges are usually part of a chamber of at least three judges or more, and there is consensus in rulings when they are written and made public with no dissenting judgments. There is no evidence to suggest that UK judges are more or less opposed to some things than say a Finnish or German judge might. It is a similar situation with the Advocate General—there is nothing to suggest a UK perspective to these Opinions.

If anything judges are wholly independent, nationally and politically, and are there for the benefit of the court. The relationship could get interesting pre-Brexit, in terms of how UK courts begin to interact with the EU courts and if we will see a reduction in preliminary reference requests on certain issues. There may be a sense within UK courts to stop making references because, ultimately, we’re out. This is one instance in which we could begin to see changes in the nature of UK-EU court relations, pre Brexit.

What key issues should lawyers and academics be watching out for?

Pre-Brexit will see early signs in how UK national courts and EU courts interact—for example with respect to preliminary reference requests according to Article 267 TFEU. Post-Brexit we will see how judges depart from the Court of Justice on a range of issues including employment, equality and non-discrimination issues. These will be policies devised by the EU but now legislated within the UK, and there will be much interest as to whether or not we will begin to see a divergence. Much of this will be led by the extent to which Parliament wants to change laws gradually or move away radically.

If we take the Prime Minister at her word that UK will be leaving the single market, that will give the UK much more freedom to regulate and this is where the unknown unknowns may lie. Observers will need to know under what circumstances and principles decisions will be guided. With Parliament gaining greater control of the Brexit process this week through the Bill before Parliament and the promised White Paper, one thing that we have seen is a likelihood that what is being discussed today will change radically come the end of the process.

It will depend, once again, on what Parliament decides and to what extent it seeks control. Meanwhile, the mandate of the EU referendum will at some point become less pronounced—whether this is through a general election, changing opinion polls, or wider concerns about the impact of Brexit. This may give Parliament an opportunity to think about things in a different way—not a change to the policy of leaving the EU, but how to do so in a more nuanced fashion. The mandate given to the executive by the referendum is still dictating the tone and partly legitimising the bypass of Parliament.

Despite some examples of the House of Lords not acting consistently with the principle of the supremacy of EU law, national UK courts have been very good at giving effect to EU law. When the authority of the Court of Justice of the European Union ends in the UK, there is no light switch that will suddenly stop the courts having the interpretations they’ve so far provided, and there is clearly a potential conflict between how judges interpret what they are doing, and the government’s sense of what they should be doing. Having accountability throughout this process, which is a process in which EU Treaty rights will be lost, was a key question of the Supreme Court that will only grow in importance.

Interviewed by Julian Sayarer.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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