"There is sensible space between absolute attachment and absolute separation"by Bob Neill / April 5, 2017 / Leave a comment
Read more: The Great Repeal Bill—neither glorious nor democratic
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…