The Brexit papers published by the government this week have produced a predictable flurry in the press. But the headline point is that it is too early for the most purist Brexiteers to cry betrayal. On the contrary, the papers show the government engaging well with rather technical legal issues. Almost everything now depends on what can now be agreed between the UK and the EU27.
Yesterday’s paper, “Enforcement and dispute resolution”, is primarily concerned with disputes that might arise over the interpretation and implementation of the “Withdrawal Agreement”. This agreement, which still seems a long way off, is likely, for instance, to impose many obligations – including, perhaps, financial – upon the UK and also to oblige the UK to extend rights to certain EU citizens to remain in the UK after exit day. Obviously disputes could arise – in fact they are likely to arise – between the UK and the EU27 over the interpretation and implementation of the agreement. How are such disputes to be resolved?
The sticking point is whether the Court of Justice of the EU (CJEU) is to have any role. The UK’s view is that the Withdrawal Agreement is an international instrument binding in international law and the CJEU should have nothing to do with disputes over it.
As the government paper explains, the EU takes the view “there are limitations, under EU law, as to the extent to which the EU can be bound by an international judicial body other than the CJEU. Where an international agreement concluded by the EU contains provisions which are in substance identical to EU law, the CJEU has taken the view that no separate body should be given jurisdiction to give definitive interpretations of those provisions.” And since the Withdrawal Agreement is likely to contain provisions identical to EU law (for instance, in securing the rights of EU citizens) the CJEU should have jurisdiction over such matters.
The EU stance is surely overly bold. Even if the CJEU was not prone to pursue a political agenda in support of European integration, it could hardly be expected that a party to an international agreement would accept the court of one of the other parties as the arbiter of any disputes that might arise.
So the government paper addresses a range of alternative means of dispute resolution. And this is the paper’s chief virtue; it sets out the alternatives with clarity and with useful analysis of precedents (giving examples where the EU seems to have departed from the stance set out above). Some of these alternatives (such as the use of joint committees) – used to resolve disputes in international law – are relatively informal and non-judicial. It is unlikely that a non-judicial approach would be used for the Withdrawal Agreement when the rights of individual would be at stake.
Other approaches are somewhat controversial, for instance, the making of a voluntary reference of a disputed point of law to the CJEU for decision. Although only a voluntary reference – so there is no question of the ruling taking effect in the UK without the consent in advance of the UK. This will doubtless prove too much for the more ardent Brexiteer.
What could be an attractive solution would be arbitration in which arbitrators are appointed by each side and with an impartial chair. Though eminently fair to both sides, this might still involve the EU accepting that a question of EU law was being decided by anyone other than the CJEU.
If diplomacy is the art of building golden bridges over which your adversary may retreat, this paper sets out several bridges over which the EU may retreat to escape from its excessively bullish attitude towards the supremacy of the CJEU.
Whether the EU will take one of these bridges remains to be seen. But this paper simply lists and describes options; there is neither betrayal of Brexit nor surrender to the CJEU here.
The government’s other legal position paper published this week, “Providing a cross-border civil judicial cooperation framework”, deals with a different issue: the private international law consequences of Brexit.
Cross-border movement of persons and goods and capital will obviously continue after Brexit and will continue to generate cross border disputes. Suppose A, an English resident, buys a magnum of champagne from B, a French wine merchant. The wine turns out to be sour. Does French or English law govern their contract? Can A sue B in England? If A obtains a judgement against B in England can he enforce it against B in France?
Today these questions are in large measure (but not exclusively) governed by a range of EU regulations (subject to interpretation by the CJEU). How will these questions be answered in the future? In this paper, the UK states that it will “need to negotiate and agree a new civil judicial cooperation framework”.
But, significantly, the UK sets out in Annex A to the paper what its position would be in the event of no agreement on the new framework being reached. Broadly speaking, the UK plans to preserve the content of the existing EU regulations up to and including the withdrawal date. It is in the common interest of both the UK and the EU that the new framework agreement be agreed. But there can be no question of the CJEU exercising jurisdiction.
Discussions of both the papers are infused with a certain arrogance in the EU’s stance, which amounts to insisting that the CJEU should determine all questions of EU law. If negotiations on these issues are to make progress, the EU must accept that while EU citizens resident in the UK may have rights against the UK similar to EU rights, these are in fact rights in UK law enforceable before UK courts.