“Taking back control” over the judges? The UK and the CJEU after Brexit

‘Taking back control’ over the judges

In the two hearings concerning the process for departure from the EU, R (Miller and Santos) v. SS for Exiting the European Union [2017] UKSC 5, the UK Courts naturally focused on the impact of UK withdrawal on the substantive rights conferred on individuals and businesses by § 2 of the European Communities Act 1972.[1]

By contrast, less attention was paid to the procedural protections afforded by § 3 of the 1972 Act, by which decisions of the CJEU are accepted as binding in the United Kingdom whether or not they originate from requests for a preliminary ruling under what is now Article 267 TFEU.

However, the role of the CJEU has for many years been a focus of discontent for campaigners for UK withdrawal from the EU, on the basis that its rulings lacked the democratic legitimacy of a national supreme court and that the role of the CJEU was, in the UK at least, an affront to the supremacy of Parliament and the UK Courts as the guardians of the rule of law within the United Kingdom.

It is hard to know what impact these inaccurate but passionate criticisms of the role of the EU’s supreme judicial body had on the UK electorate

During the UK Referendum campaign, Michael Gove – a vocal leader of the Leave campaign despite retaining his post in the Cameron Government as Lord Chancellor and Minister of Justice (with a statutory duty to uphold judicial independence) – went out of his way to suggest that the CJEU was an unaccountable ‘rogue court’ that did not respect the proper boundaries of its jurisdiction as against that of the national courts. For example, he suggested at the very start of the Referendum campaign that the substantial protections for UK interests obtained by David Cameron in his ill-starred settlement agreement were liable to be undermined or wholly set aside by the unfettered powers of the CJEU.[2]

It is hard to know what impact these inaccurate but passionate criticisms of the role of the EU’s supreme judicial body had on the UK electorate – it may be that they were too theoretical and abstruse to have had much weight – but the attacks on the role of the CJEU formed a significant part of the ‘take back control’ narrative of the Leave campaign. And these attacks have not abated in the aftermath of the Referendum – on the contrary, it is one of the central pillars of Theresa May’s negotiating strategy that the CJEU should no longer exercise jurisdiction over the United Kingdom.

In this series of posts, I will consider how realistic this objective might be, what its implications could be for the wider negotiating process, and what alternatives appear to be open to the UK and EU if the CJEU is indeed to be toppled from its traditional role in any future trading and political arrangements between the UK and the EU.

Paragraph 2.3 of the White Paper

The starting point is the single paragraph devoted to the CJEU in the UK Government’s White Paper, ‘The UK’s exit from, and new partnership with, the European Union.’ By way of preliminary comment, it might seem surprising that so little attention is paid to this topic given the prominence of the CJEU in the demonology of EU institutions of the UK press; and that surprise is only enhanced by the fact that the CJEU is not mentioned at all in the Annex to the White Paper, in which the UK Government sets out alternative models for dispute resolution that might be considered on withdrawal.  Given that this is to be a negotiation with a much larger counter-party with whom the UK has been in a detailed and intensive relationship for over 40 years, one might have anticipated the UK Government at least to contemplate the possibility of the EU starting from the status quo.

Paragraph 2.3 of the White Paper comprises just five short sentences, and states as follows (with some brief comments after each sentence):

‘The Court of Justice of the European Union (CJEU) is the EU’s ultimate arbiter on matters of EU law.’

This is uncontroversial in itself, and reflects the role of the CJEU under the EU Treaties.  It is not clear whether this is intended as a statement of fact or as an unacceptable state of affairs that must be changed by UK withdrawal.

‘As a supranational court, it aims to provide both consistent interpretation and enforcement of EU law across all 28 Member States and a clear process for dispute resolution when disagreements arise.’

Again, this is the traditional role of the CJEU under the EU Treaties, which require the Member States to use the CJEU to resolve disputes.  It is not clear whether there is an implied criticism in this description of the role of the CJEU, or whether this is simply a concise description of the unique – and positive – role that the CJEU has played as a force for rational and measured integration within the EU project over its 60 years of existence.

‘The CJEU is amongst the most powerful of supranational courts due to the principles of primacy and direct effect in EU law.’

This is potentially misleading in the context of the forthcoming negotiations.  The principles of supremacy and direct applicability are certainly the cornerstones of EU jurisprudence, but these principles have arisen out of the essential nature of the EU (and its predecessor communities) as an international organization that is intended not only to create relations between the Member States but to confer uniform and enforceable rights on individuals and businesses throughout the territory of the EU.

In reality, the CJEU is ‘one of the most powerful of supranational courts’ for two other reasons that do not get as much coverage as they might, particularly in the context of the forthcoming negotiations:

• the scope and content of the rights conferred on individuals and businesses by the EU Treaties, as they have developed not only in legislation but also in the case law of the CJEU and the national courts – if these rights were less extensive or narrower in scope then the importance of the CJEU would obviously be diminished, even if the principles of direct applicability and supremacy remained in place; and
• the fact that the EU is a global role model for international legal harmonization, matched in economic power and influence only by the US and China – the reality is that the rulings of the CJEU, for example in major policy sectors such as merger control, data protection and environmental law, have a global significance that is matched only by rulings of the US Supreme Court.

The first of these points reflects the core concerns of the UK Courts in the Miller and Santos litigation, that the effect of UK withdrawal will be to abrogate not only a mass of specific rights currently enjoyed by individuals and businesses under EU law, but to destroy an entire category of rights introduced into UK law by s. 2 of the 1972 Act of which EU law is and will continue to be the independent source.

This emphatic ongoing commitment of the UK Government to its commitments under international law raises some difficult questions in relation to UK withdrawal from the EU

The second point is of importance not only because of the need for a sense of perspective about the global role of the EU in the international order, something that is in general completely lacking in any UK discussions of the EU or the UK’s role within it.  It also reflects the clear inequality of economic bargaining power between the UK and the EU, underlying the concerns that many observers have that, once the negotiations start in earnest, the weak negotiating position of the UK relative to the much larger and more powerful EU will be clear for all to see, whatever the nostalgic aspirations of the UK media and many of those who voted for UK withdrawal.  But that is of course as yet uncertain.

‘We will bring an end to the jurisdiction of the CJEU in the UK.’

This is the nub of the matter, reflecting one of the central pillars of the ‘take back control’ agenda that Theresa May has inherited from the Referendum Leave campaign.  However, although the CJEU is certainly the ‘ultimate arbiter’ of the interpretation and validity of EU law under the EU Treaties, strictly speaking the CJEU has no jurisdiction in the UK:

• EU law is implemented in the UK (and other Member States) by their own national courts and administrative bodies, acting in cooperation with the EU institutions.
• In the UK, EU law has effect by the operation of the 1972 Act and other primary and secondary legislation, in accordance with the UK’s dualist conception of international law. That was clear from the 1972 Act itself and was made explicit by section 18 of the European Union Act 2011 and in the judgment of the Supreme Court in Pham.[3]

Of course, there are specific circumstances under the EU Treaties where, for example, the European Commission can bring infringement proceedings in the CJEU against the United Kingdom for failure to perform its obligations under the EU Treaties, for example a failure by the United Kingdom to implement a Directive, but those are relatively rare instances of an international law jurisdiction.  Even in such cases, enforcement of EU law obligations as determined by the CJEU is ultimately dependent on enforcement by the national courts, as for example in the case of Francovich damages actions where a Member State fails to perform its EU obligations.[4]

‘We will of course continue to honour our international commitments and follow international law.’

This emphatic ongoing commitment of the UK Government to its commitments under international law raises some difficult questions in relation to UK withdrawal from the EU, particularly in relation to the process of withdrawal itself, and the ongoing role of the CJEU as the ‘ultimate arbiter’ of EU law:

• The content of the UK’s ‘international commitments’, both under EU law itself and under any agreements between the UK and the EU that may replace or modify those commitments on UK withdrawal, are going to be the subject matter of negotiations over the next few years, including the way in which those commitments are to be enforced and interpreted if the UK and the EU do not agree.
• Whatever is agreed on a bilateral basis between the UK and the EU, EU law will not disappear, but will remain an important part of ‘international law’, binding on our most important trading partners and having a significant impact on trade with other major players such as the USA, Canada, China and Japan; and the CJEU will remain the ‘ultimate arbiter’ of the validity and interpretation of EU law under the EU Treaties, after UK withdrawal just as it was before the UK joined in 1973.

So there are at least five issues that will be crucial to consider in relation to the ongoing role of the CJEU after UK withdrawal:

1. What EU law rights, if any, will still be available to individuals and businesses after UK withdrawal?
2. What status will rulings of the CJEU on EU law have in the UK?
3. What rights will be available to individuals and businesses under any new agreement between the UK and the EU?
4. How will any issues about the interpretation and enforcement of those rights be decided?
5. Could the CJEU have any role in dispute resolution after UK withdrawal?

These issues will be considered in the second part of this post.

Notes:

[1] “Upon the United Kingdom’s withdrawal from the European Union, EU law will cease to be a source of domestic law for the future (even if the Great Repeal Bill provides that some legal rules derived from it should remain in force or continue to apply to accrued rights and liabilities), decisions of the Court of Justice will (again depending on the precise terms of the Great Repeal Bill) be of no more than persuasive authority, and there will be no further references to that court from UK courts.  Even those legal rules derived from EU law and transposed into UK law by domestic legislation will have a different status.  They will no longer be paramount, but will be open to domestic repeal or amendment in ways that may be inconsistent with EU law’: R (Miller and another) v. Secretary of State for Exiting the European Union [2017] UKSC 5, § 80, emphasis added.

[2] For a criticism of some of the points made by Mr Gove, see: http://www.thetimes.co.uk/article/michael-goves-misleading-attacks-on-the-eu-court-of-justice-90wstv3ft.  There is an unfortunate error in the article, in that the CJEU celebrates its 65^th rather than 50^th anniversary this year.

[3] Pham v. Secretary of State for the Home Department [2015] UKSC 19, § 80, cited by Lord Reed in Miller, § 224.

[4] See Miller, § 63.

A version of this paper was given in Stockholm on 22 March 2017 at a seminar organised by the Stockholm, Vinge and the Stockholm School of Economics. A previous version also appeared on the Matrix Brexit Hub.