Constitutional law
The post-Brexit legal order: a continuing role for the CJEU?
This article highlights the role that the Court of Justice of the European Union (CJEU) may play in a post-Brexit UK legal order.
About the author
Neil Parpworth is an associate professor at Leicester De Montfort Law School.
At the time of writing, the European Union (Withdrawal) Bill has passed its various stages in the House of Commons and is at the committee stage in the House of Lords. The constitutional importance of this historic bill cannot be overstated for it represents how the UK’s departure from the EU will be secured. The bill, therefore, addresses very important issues such as the fate of domestic legislation made under the authority of the European Communities Act (ECA) 1972. This is a necessity given that the ECA is to be repealed and, if the matter were not addressed, a legal vacuum would ensue. For present purposes, however, the focus of the discussion is on the role that the Court of Justice of the European Union (CJEU) will have to play in a post-Brexit UK legal order.
It is a popular misconception that the CJEU has a wide and virtually unfettered jurisdiction which allows it to meddle in the domestic affairs of member states. The reality is that the ‘[ t]reaties give the European Court only limited jurisdiction’. ¹ This is confined to matters such as hearing infringement actions against member states for non-compliance with their EU obligations, determining actions for the annulment of EU legislation, and receiving preliminary references from national courts relating to the interpretation of the EU treaties and other legal instruments.
The latter jurisdiction arises under article 267 of the Treaty on the Functioning of the European Union. Thus, whereas a national court or tribunal may request the CJEU to give a ruling ‘if it considers that a decision on the question is necessary’, it is obliged to make an article 267 referral where there is no right of appeal against its decision. In Coal Staff Superannuation Scheme Trustees Ltd v Commissioners for Her Majesty’s Revenue and Customs [2017] UKUT 137 (TCC), Rose J noted that: ‘The interrelationship between the two limbs of [a]rticle 267 and their application to the court system in the UK have been settled over many years’ (para 26).
On 17 January 2017, Theresa May, the prime minister, gave a speech at Lancaster House setting out the government’s negotiating objectives for exiting the EU. She was very clear that Brexit would ‘bring an end to the jurisdiction of the European Court of Justice in Britain’, with the result that ‘our laws … will be interpreted by judges not in Luxembourg but in courts across this country’. Subsequently, however, as is so often the case, political rhetoric has been forced to give way to legal reality. Thus, by the time the Repeal Bill white paper Legislating for the United Kingdom’s withdrawal from the European Union Cm 9446 was published in March 2017, it was accepted that ‘for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means’.² And, of course, it is the CJEU which is ultimately responsible for providing that ‘common understanding’. The legal reality was again evident in the prime minister’s Mansion House speech, on 2 March 2018, when she observed that Brexit necessitated facing up to various hard facts, including that ‘even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us’. Accordingly, the bill addresses the future nature of the relationship between the UK courts and tribunals, and the CJEU post-exit. Its provisions, and their practical effect, are quite possibly at odds with what the most ardent Brexiteers would have expected.
Clause 6: Interpretation of retained EU law
Clause 6(1) of the bill provides that a court or tribunal is neither bound by any principles or decisions of the CJEU made on or after exit day nor permitted to refer matters to the CJEU on or after exit day. Thus, eventually article 267 referrals will become a thing of the past.
The cessation of the jurisdiction will, however, depend on the terms and conditions of a transitional or withdrawal agreement which has yet to be finalised. The draft of the agreement, published on 28 February 2018, deals with the issue of pending and new cases before the CJEU.³ As things stand at present, the text of Title X ‘Union judicial and administrative procedures’, Chapter 1 ‘Judicial procedures’ corresponds to that which has been proposed by the EU, and in respect of which discussions are ongoing. Subject to this important caveat, it should be noted that article 82(2) provides that the CJEU will continue to have jurisdiction to give preliminary rulings in respect of the UK on referrals made before the end of the transition/implementation period, ie, 31 December 2020 (see article 121). By virtue of article 83(2), where the facts of a case before a UK court or tribunal occurred before the end of the transition period, an article 267 referral will still be capable of being made even after the transition period has ended. Moreover, judgments and orders of the CJEU handed down before the end of the transition period, and those handed down after that period in accordance with articles 82 and 83, are to be binding (see article 85(1)).
Clause 6(2) of the bill is also concerned with the post-exit day jurisprudence of the CJEU; it rows back a little from the position stated in clause 6(1) in that this clause accords a court or tribunal discretion in the sense that while they need not have regard to post-exit CJEU jurisprudence, they may do so where they consider it to be appropriate.
Reading clause 6(1) and (2) together, therefore, it follows that UK courts are likely to have regard to post-exit CJEU case law where it relates to the interpretation of retained EU law which has not been modified. During the bill’s House of Lords’ committee stage, various amendments to this provision were debated. Thus, for example, Lord Pannick proposed substituting a new clause 6(2) to permit courts or tribunals to ‘regard the decisions of the European Court made on or after exit day to be persuasive’ (HL Debates col 1090, 7 March 2018). Although the amendment was later withdrawn, the debate on it highlighted concerns that the use of ‘appropriate’ in the current version of clause 6(2) places the judges in an invidious position in that it suggests that they will need to make a policy choice in this context.
Thus, Lord Neuberger, the former President of the Supreme Court, opined that the present clause 6(2) ‘is worse than nothing from the judicial perspective’ (HL Debates col 1094, 7 March 2018). One solution to this problem is for the bill itself to provide clear interpretative guidance for the courts. Lord Neuberger considered that the ‘unique circumstance’ which Brexit presents would justify such a course even if it were opposed by some on the ground that parliament instructing judges how to interpret the law would be a dangerous precedent to set (HL Debates col 1096, 7 March 2018).
To an extent, however, it might be argued that this has already happened in the context of human rights protection in that Human Rights Act 1998 s3(1) directs that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with [c]onvention rights.'
By virtue of clause 6(3) of the bill, the meaning or validity of ‘retained EU law’ (ie, EU law which continues to be part of domestic law on or after exit day as a result of having been incorporated into UK law by the bill itself) is to be decided by domestic courts in accordance with retained EU case law and general principles, ie, the case law and general principles which existed immediately before exit day. During the course of the bill’s House of Commons committee stage, Dominic Raab, the then justice minister, observed that clause 6 ‘seeks to take a snapshot of EU law immediately before exit day’ on the basis that any other starting point would be to change the law, which was not the government’s objective (Hansard, HC Debates 14 November 2017, cols 287–288).
The general position established by clause 6(3) is subject to an exception in relation to the UK Supreme Court (UKSC), and a more limited exception with regard to the High Court of Justiciary in Scotland. Thus, in the case of the former, the UKSC will not be bound by retained EU case law. It will therefore have the freedom to depart from CJEU case law where the UKSC considers it appropriate or necessary to do so. The exception for the Scottish court applies where it is sitting as a court of appeal or on a reference made under Criminal Procedure (Scotland) Act 1995 s123(1). Sir Oliver Letwin MP has suggested that this differential treatment might cause problems in the future, in that the wording of clause 6 implies that the lower courts would have to continue to follow CJEU case law even where it had been departed from by the UKSC. It is submitted, however, that this interpretation is unlikely to be correct for, if this is what parliament intends, there would need to be clear words in clause 6 confirming that this is so; the absence of such wording would, therefore, appear to be deliberate rather than an oversight.
In the case of retained domestic case law, ie, any decisions or principles laid down by the UK courts before exit, clause 6(4) (c) provides that no court or tribunal is bound by that which it ‘would not otherwise be bound by’. In other words, therefore, the doctrine of precedent will continue to operate normally. This is further confirmed by the fact that when departing from EU retained case law, both the UKSC and the High Court of Justiciary ‘must apply the same test as it would apply in deciding whether to depart from its own case law’ (clause 6(5)). In the case of the UKSC, therefore, a departure would need to be in accordance with its own Practice Statement (2010), reflecting the spirit of the practice statement adopted originally by the House of Lords (House of Lords’ Practice Statement of 26 July 1966. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) whereby the decisions of the highest court are normally regarded as binding on itself, save where a departure is considered to be appropriate.
Given the complex matters to which it relates, it is perhaps not so surprising that the wording of clause 6 of the European Union (Withdrawal) Bill requires careful study to appreciate its import fully. The bill’s meaning is, arguably, affected adversely by the fact that the provision is trying to achieve two ends: the need for legal certainty on the one hand; and the political desirability of ending the direct jurisdiction of the CJEU on the other. While the latter will take place eventually, it will be evident from the discussion above that the impact of the CJEU’s jurisprudence will continue to be felt for a number of years, and certainly well beyond 31 December 2020. While clause 6 is understandably silent on the matter, the jurisdiction of the CJEU may of course be reignited from a UK perspective even after the end of the transition period, for example, if - post-exit - a term of a trade agreement between the EU and the UK was that disputes between the parties be determined by the court.
While clause 6 allows for the possibility of domestic courts merely having regard to post-exit CJEU case law (or of not being bound by it) there is little indication about when the former course of action may be appropriate. Applying post-exit CJEU case law is a key issue for the courts, and yet to an extent clause 6 leaves it to the judiciary to work out the guiding principles. As implied above, the bill’s omission in this regard has attracted adverse comment from senior judges both past and present. Thus, Lord Neuberger’s successor as president of the UKSC, Baroness Hale, has expressed the wish that the bill provides ‘as much clarity as possible’ on the extent to which the court ought to take account of the post-exit judgments of the CJEU.
In giving evidence to the House of Lords Constitution Committee in March 2017, Baroness Hale thought that this was ‘not something we would like to have to make up for ourselves … because it is very much a political question’ to which statute should provide the answer.4 In its January 2018 report, European Union (Withdrawal) Bill, the committee expressed its own concern that: ‘the [b]ill leaves courts without proper guidance on this fundamental question of policy and that, by deciding to attach weight or indeed not to attach weight to post-exit CJEU cases, judges may become involved in political controversy’ (para 141).5
Given the furore which attended the High Court’s decision in R ((1) Miller and (2) Dos Santos v Secretary of State for Exiting the European Union) [2016] EWHC 2768 (Admin), when one newspaper in particular branded the three judges who originally heard the case ‘Enemies of the people’, the government will be ill-advised to leave the matter as it is. Instead, it ought to act on the concerns expressed by the judiciary and parliamentarians, and amend the bill at the report stage to provide the guidance which presently is lacking. If the government fails to do so, there is a very real prospect that, for years to come, David Gauke, the Lord Chancellor, may be called on to defend the independence of the judiciary on a regular basis in accordance with his duty under Constitutional Reform Act 2005 s3 and the terms of his oath of office (see Promissory Oaths Act 1868 s6A).
1 Trevor Hartley, The foundations of European Union law, Oxford University Press, 8th edn, 2014 at p56
2 Available at: https://tinyurl.com/yd7ck2pk
3 Available at: https://tinyurl.com/y7wd677f
4 Available at: https://tinyurl.com/y7m3uq83
5 HL Constitution Committee, 9th Report of Session 2017-19, HL Paper 69, available at: https://tinyurl.com/ybv57srm