"There is sensible space between absolute attachment and absolute separation"by Bob Neill / April 5, 2017 / Leave a comment
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The Court of Justice of the European Union (CJEU), the ultimate authority on EU law, does not appear to sit among the government’s most lamented losses of Brexit. You need only turn to the second chapter of the Brexit White Paper to see “ending the jurisdiction of the CJEU in the UK” as a central executive goal. However, the Justice Committee—a cross-party group of MPs that scrutinises the Ministry of Justice (and which I chair)—found complications with this approach in a recent inquiry.
EU regulations require the commercial and family judgments of one country to be recognised and enforced in others; they also clarify jurisdiction (the question of which court will hear a case) in cross-border disputes where it would otherwise be ambiguous. These laws, known as Brussels I and II, have many uses, whether you’re a large City corporation looking for certainty in the legal ramifications of a major contract, or an ordinary person seeking maintenance from an ex-partner overseas.
Brussels I and II don’t decide what can go in a contract, or what constitutes grounds for divorce. In legalese, they are procedural not substantive: they simply identify the court with jurisdiction in cases with links to multiple EU countries. Obviously, that’s not a job that can be left to domestic courts without any mutual influence or interdependence—binding cross-border rules require some kind of supranational authority.
The Justice Committee recently published its report, “Implications of Brexit for the justice system,” drawing on detailed evidence from lawyers, academics, businesses and others. Some suggested that, to keep Brussels I and II, the UK would need to give “due account” to CJEU decisions. Judges would still consider the Court’s reasons for judgments in similar cases, though not bound by them, much as they do with relevant decisions in Commonwealth jurisdictions.
Commercial lawyer Simon Gleeson’s view was that the CJEU “will have strong persuasive authority in this country, even when it ceases to have actual authority.” How persuasive? (more or less so than the High Court of Australia, for example?) Brenda Hale, Deputy President of the Supreme Court, recently said “it should be made plain in statute what authority, or lack of authority, or weight or lack of weight, is to be given to decisions of the CJEU after we have left.” There is a risk that, if courts here diverge too greatly from the CJEU’s interpretation of the law, whatever new arrangement is reached is put at risk. Due account might be insufficient.
If the UK were forced to choose between cross-border legal cooperation and absolute freedom from the CJEU, how should it pick? Eva Lein of the British Institute of International and Comparative Law, a think tank, described the CJEU as explaining European regulations so as to maintain a uniform interpretation, without “ultimately interfering in the decision-making process.”
Family solicitor Daniel Eames asked, “Without an appellate court across the EU, why on earth would the French court or the Italian court stop its proceedings in favour of English proceedings?” The CJEU’s part in UK justice isn’t restricted to civil law: the European Arrest Warrant, a device for expeditious extradition, is also interpretable by the court. However, the Committee did not address the wider question of the CJEU’s jurisdiction in the UK on matters beyond essentially procedural civil justice legislation.
What we do know is that any new arrangement for cross-border recognition and enforcement of judgments will need some court or arbitral mechanism, and that such an arrangement is highly desirable—indeed, we listed it among our top justice-related priorities for the government in Brexit negotiations.
Plainly, these matters are difficult to balance. Philip Marshall QC, Chair of the Family Law Bar Association, observed early in our inquiry that “having voted to leave the EU but then to presume to bind ourselves absolutely to the judgment of the CJEU would be for many an extraordinary and, I suspect, unacceptable step to take.” But there is sensible space between absolute attachment and absolute separation. As to the question of whether an essentially procedural role for the CJEU was a price worth paying for the benefits of Brussels I, II and others, the Justice Committee said yes.