UK Brexit – Government paper on judicial oversight of the Brexit arrangements

The European Commission and the UK meet on 28 August for the third round of their Brexit negotiations.

On 23 August UK published what is likely to be one of, if not the, most contentious of tis briefing papers Enforcement and dispute resolution: a future partnership paper

Of the papers published to date they have all been just “position papers” with the exception of the Future Customs arrangements paper which was also a “future partnership paper”.

Earlier statements of the government, and of the Prime Minister, have suggested that the Court of Justice of the European Union (CJEU) would have no role in the post Brexit arrangements in the UK. In the Lancaster House speech in January the Prime Minister said “So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.

The current “future partnership paper” sets out a more nuanced approach and recognises that there will need to be some supra national, or bilateral, oversight to monitor the implementation of the future arrangements and resolve any disputes which arise.

Where the balance will be struck will depend on the future negotiations between the UK and the 27 remaining members of the EU, the European Commission and the European Parliament.

What is clear is that the UK will seek to end the direct jurisdiction of the CJEU in the UK’s legal system, this is mentioned seven times in the paper, but at this stage it is not clear, and it is not defined, what “direct jurisdiction” means.

The current paper sets out a number of options which will be tested in those negotiations.

Paragraphs 22 and 23 of the paper state:

“22. The UK’s position is that where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK then, where appropriate, these will be given effect in UK law. Those rights or obligations will be enforced by the UK courts and ultimately by the UK Supreme Court. UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States.

  1. This means, in both the UK and the EU, individuals and businesses will be able to enforce rights and obligations within the internal legal orders of the UK and the EU respectively, including through access to the highest courts within those legal orders. This would be the case in respect of both the Withdrawal Agreement, including an agreement on citizens’ rights, and the future partnership.”

Citizens’ rights is likely to be a topic where the above formulation may not be acceptable to the EU member states and will be hard fought over during the negotiations.

The paper sets out a number of existing models and approaches which could provide the mechanisms for resolving disputes between the UK and the EU. They are said in the paper to “purely illustrative, and without any commitment to include any specific aspects in the design of [the UK’s] future partnership.” They include: 

Joint Committees 

Arbitration models

Reporting and monitoring requirements

Reference to pre- and also to post- agreement CJEU decisions

Supervision and Monitoring

Provision for voluntary references to CJEU for interpretation

In July the government published a paper on transitional arrangements with the CJEU which we covered in our posting The European Union (Withdrawal) Bill and transitional arrangements for cases pending before the Court of Justice of the European Union (CJEU)