Sir Francis Jacobs – Written Evidence (EAW0001)
Introduction
[1] I understand that the Committee, following the earlier report of 16 December 2016 on future UK-EU security and police cooperation, is looking more closely at the options for replacing the European Arrest Warrant; what the effect of the Government's 'red line' on CJEU jurisdiction might be; what the transition to a new arrangement on extradition could look like and whether an interim arrangement would be any easier to negotiate than a permanent replacement. The Committee is also interested in exploring the prospects of a 'bespoke' adjudication arrangement bearing in mind the Government's stated intention to withdraw from the jurisdiction of the CJEU.
[2] As I pointed out when invited to give evidence, I am not a specialist in criminal justice cooperation and the European Arrest Warrant, but I am interested in the effects of the Government's "red line" on CJEU jurisdiction and in alternative forms of dispute resolution in this and in other contexts. This note seeks to address those topics. Although the note ranges more widely than the immediate subject of this inquiry, it may be helpful to place the discussion in a broader context.
I The Court of Justice and the “red line”
[3] Despite the White Paper on “The United Kingdom’s exit from and new partnership with the European Union”, there have been as yet few indications of the Government’s precise intentions in the negotiations for withdrawal from the EU. It seems likely however that some objectives may or will be excluded, at least in part because they would involve accepting a role for the CJEU which the Government wishes to avoid.
[4] Section 2 of the White Paper, entitled “Taking control of our own laws”, has a heading “Ending the jurisdiction of the Court of Justice of the European Union in the UK”. After an objective summary of the existing role of the Court, paragraph 2.3 states: “We will bring an end to the jurisdiction of the CJEU in the UK”. This is not however a distinct objective of the negotiations. It will follow necessarily from the exit of the UK from the EU. So this is not an explication of the red line.
[5] The red line could however mean that the UK would not accept any new agreement between the UK and the EU which, after UK exit, gave the CJEU jurisdiction over such agreement. It could also mean that the UK would refuse any agreement which would require it to accept the case-law of the CJEU in that sector. Whatever the precise content of the requirement, the language of “red lines” suggests that the requirement is an absolute one. The effect might therefore be to make it difficult, or even impossible, to attain some of the UK’s priority objectives in the negotiations. Some of these possible effects will be considered briefly below.
[6] Avoiding the jurisdiction of the CJEU is one of only two such apparently absolute requirements, or “red lines”. The other red line is immigration, although it is not at all clear how the immigration red line will function or what is meant by it, as it is not yet clear how immigration control will function. In fact it does not seem to be absolute, in that it is clearly not the intention to exclude all immigration from the EU.
[7] It is not clear what the basis is for the apparently absolute refusal to countenance any future role for the CJEU. This does not seem to have been explained. It is of course clear that the Court has become a favourite target of the Eurosceptic, both among politicians and in some sectors of the media. But what is the basis for this? It must be remembered that many criticisms of the EU generally, both in the Press and by some politicians, even senior members of the Government, have had no basis in fact. This is certainly true of the Court. For example, some critics are still unaware that the CJEU is not the same as the European Court of Human Rights.
[8] In any event, as explained below, it seems likely that there will be some continuing role for the CJEU in relation to Brexit. In order to understand the context of the debate, it is worth considering by way of brief overview the past role of the Court, and the responses to it.
II The contribution of the Court - a brief overview
[9] It would be a very bold observer who would offer an overall evaluation of the role of the CJEU in the life of the EU, or its impact on the UK. However, it may be useful, as a corrective to some current attitudes to the Court, to mention some aspects which should be taken into account in assessing the role of the Court, and which may have been overlooked by some of its critics.
[10] Mention should be made first of the contribution of the Court to the development of the internal market. The political incentive for the internal market came largely from the UK Government 25 years ago, and its implementation was introduced by Lord Cockfield as the UK Commissioner. But any student of EU law will know that the detailed transformation into the successful internal market as it exists today, where a market of 500 million people is the home market for all the Member States, is to a very considerable extent the work of the CJEU. Indeed, so successful has the Court been in this respect that in regional free trade organisations around the world there are approaching twenty regional courts which have been set up on the model of the CJEU – although it has to be accepted that few of them have achieved comparable results.
[11] There should also be mentioned the contribution of the Court to the development of other fields of EU law. Examples include employment law – at one time a controversial area, but the case-law and the development of employment rights is now widely regarded as beneficial, and there seems now to be a consensus to this effect in the UK – and social security law. Among many other areas of law, mention should be made of environmental law, where the EU has taken a leading role and the Court has again played a constructive part; international trade law; competition law; intellectual property law; and other fields could be added.
[12] The development of the Court’s case-law has been partly due to the United Kingdom. The UK has made an important contribution to the work of the Court. The Member States, as well as taking their own cases to the Court, have the right to intervene in all cases before the Court. The United Kingdom has made constructive use of this right, and the value of its participation in cases before the Court has often been noted by members of the Court. I can also vouch for the value to the United Kingdom of the Court, as before my appointment to the Court I represented the United Kingdom in many significant cases before the Court. Of course the UK has, not infrequently, lost cases, although the consequences of failure (for example in the area of employment rights) have sometimes seemed less serious in retrospect. The Government frequently loses cases, even important cases, before the English courts. The recent case of Miller, on Article 50, is a striking example. It is true that, on losing a case in the English courts, the Government can sometimes reverse the decision by legislation (that can be achieved more easily than a decision of the CJEU can be overturned). In practice, however, this rarely happens, and that is perhaps as it should be.
[13] Many of those familiar with the case-law of the Court would take the view that a large proportion of the case-law has been beneficial to the United Kingdom.
III The Member States and the Court system
[14] More generally, the United Kingdom and other Member States have consistently supported measures to strengthen the Court system of the EU. This seems inconsistent with the notion that the Court is in some way a threat to the interests of the UK or its citizens. Moreover, while any overall assessment of the case-law of the Court is necessarily selective and to some degree subjective, the responses of the Member States cn be established objectively.
[15] Three examples can be mentioned.
[16] A first example is the setting up of the General Court (initially known as the Court of First Instance) in 1989: this reform was explicitly designed to improve the rule of law in the EU by giving fuller judicial protection to individuals and companies against measures taken by the EU institutions (including competition cases, where the European Commission has very great powers). The jurisdiction of the General Court, once established, was progressively extended over the years by the Member States, and it now has jurisdiction in cases brought by Member States themselves, which therefore also benefit from a closer judicial scrutiny of EU measures challenged before the Court. (It may be mentioned also that the General Court proved an excellent model for the establishment in the UK of the successful new court, the Competition Appeal Tribunal, under its first president Sir Christopher Bellamy, previously a judge at the General Court.)
[17] The second example is the introduction, by Member States in the Maastricht Treaty, of provision for fines, and daily penalties, which can be imposed by the Court of Justice on a Member State which has failed to comply with a previous judgment of the Court finding that the Member State has infringed the Treaty. The introduction of this reform, adopted by the Member States themselves, with strong support from the United Kingdom, has no precedent or parallel in any other transnational system. It has proved very effective in practice in promoting compliance and upholding the rule of law.
[18] Its adoption by the Member States suggests a high measure of confidence in the role and the work of the CJEU.
[19] A third example is the extension of the jurisdiction of the Court of Justice in the Lisbon Treaty. Under that Treaty, the previous “three-pillar” system was abolished, and the Court’s jurisdiction, previously largely confined to the first, “Community” pillar, was extended to the third pillar, the “Area of Freedom, Security and Justice”, which comprises policies on border checks, asylum and immigration; judicial cooperation in civil and criminal matters; and police cooperation. Broadly, the scope of the Court’s jurisdiction is now the same in these fields as in the Treaty generally.
[20] Again, the extension of the Court’s jurisdiction suggests a high measure of confidence in the role and the work of the CJEU.
[21] Independently of the cases in which it has taken part, the United Kingdom, in common with other Member States, has obviously benefited greatly from the very existence of an effective judicial system in the EU, in much the same way as UK citizens, without themselves being involved in litigation, benefit from the existence of an effective judicial system in the UK.
[22] Moreover citizens benefit from the EU judicial system, both because their rights are enforceable by way of references from national courts to the CJEU, and also because EU law often gives effective remedies in the national law, for example by enabling consumers who have claims against concerns in other Member States to take proceedings in their own courts rather than face the difficulties of taking proceedings in foreign courts.
[23] In conclusion on this aspect of the Court and its role, it is of interest to note that the EU’s judicial system has attracted attention around the world and, as mentioned above, there have been many attempts to introduce aspects of it into other transnational economic organisations by setting up courts modelled on the CJEU. There have to date been approaching twenty systems modelled on the CJEU. It must be said that few of them have proved very effective and that the CJEU and the EFTA Court remain the leading examples of successful transnational courts – reflected in the successful internal market of the EEA.
[24] More generally, the extension of the rule of law across the whole EU may be seen as a benefit for all Member States and EU citizens, as is the case also with the Council of Europe and the European Convention on Human Rights.
IV Criticisms of the Court
[25] Against these positive aspects, three aspects of the Court’s case-law in particular have been challenged by critics, especially in the United Kingdom.
Competences
[26] First, it is asserted that the Court has frequently extended the competence of the EU at the expense of the competence of the Member States. However – and this seems to have received little notice – a very thorough investigation of the “balance of competences” between the EU and the Member States was set up by the Government and recently carried out by the Civil Service, with substantial contributions by way of evidence and argument from trade and industry, from other stake-holders and by academics. The outcome of this extensive work was the overall conclusion that the existing balance of competences between the EU and the Member States was “about right”. The implication seems to be that what is currently done by the EU is more appropriately done by the EU than by Member States. It may be significant that, although in the past there were occasionally calls for some competences to be transferred back from the Union to the Member States, such demands have not been heard recently, and that the issue does not seem to have featured in the recent renegotiation by the United Kingdom.
[27] Two other areas of EU law which were a principal focus in the UK for critics of the Court are the field of employment law, and the Court’s approach to the Charter of Fundamental Rights. Brief comments may be made on both.
Employment law
[28] Employment law was for a long period probably the source of most criticism of the Court’s case-law in the UK. The case-law on employment rights in general and the Working Time Directive in particular was a principal target.
[29] The Government’s White Paper takes a very different approach. Section 7 is entitled “Protecting workers’ rights”. 7.1 reads as follows: “As we convert the body of EU law into our domestic legislation, we will ensure the continued protection of workers’ rights. This will give certainty and continuity to employees and employers alike, creating stability in which the UK can grow and thrive.”
[30] This development, from a hostile approach to a more positive response, seems not unusual in the reception of the Court’s case-law. Decisions on the interpretation of EU law which may have seemed to go too far when they were taken are later seen as appropriate and may be welcomed. Obvious examples, of fundamental and far-reaching importance in the EU legal system, were the decisions of the Court in the 1960s on the direct effect and primacy of EU law. These decisions were controversial at the time, but in retrospect it is difficult to see how the EU could have functioned effectively without them. The same applies in more recent times to areas of substantive law, where EU law has taken a lead and other systems have followed. I do not of course suggest that there are not areas of law where the Court may have taken a wrong approach; no such suggestion could be made of any legal system.
The Charter of Fundamental Rights
[31] The Charter has been a particular source of misunderstanding in the UK. I have spoken to a senior and influential lawyer who told me that “what the Court did with the Charter” was the reason they voted to leave the EU. At the risk of some over-simplification, there are two misconceptions here. First, the misconception that the Court did away with the UK’s “opt-out”. The truth is that the relevant text (Protocol no. 30 to the Lisbon Treaty) does not contain an opt-out, as Government statements at the time made clear, the UK did not seek an opt-out. The purpose of the Protocol was to make clear the consequences of the fact that the Charter did not seek to create any new fundamental rights.
[32] Second, it has been suggested that the Court has embellished the rights protected by the Charter. In fact, as experts have shown, the Court has taken, overall, a rather cautious approach to the Charter.
Generally
[33] Obviously it is not suggested that the Court’s case-law does not sometimes give rise to concern, and to legitimate criticism. But the criticism must be balanced and proportionate.
[34] Any account of the Court’s case-law is necessarily highly selective, and no overall assessment is easy. The very same decision is often praised by some scholars and criticised by others in almost equal measure.
[35] However what is in issue now in the UK debate seems to have moved on from criticisms of particular decisions and now reflects a more general concern for loss of sovereignty. So criticisms of particular areas of case-law seem to have been replaced by more general concerns over sovereignty. How are such concerns to be assessed?
V Sovereignty
[36] As discussed below, the White Paper seems to posit that any decision by way of dispute settlement must be subject to respect for UK sovereignty. But in the modern world, decisions by courts should not be considered as an impairment of sovereignty. The same is true of domestic systems. It may not be widely realised in the UK, with its attachment to Parliamentary sovereignty, that in most comparable modern systems around the world the last word rests, on many issues, with the courts rather than the legislature. That is the case with most European democracies, including Ireland, France, Germany, Italy, Spain, and many other European States which have supreme courts or constitutional courts with the final say on many issues. It is the case also in the U.S., Canada, Australia and many other States.
[37] Nor can it be expected that disputes of the kind in issue can be resolved exclusively by UK courts. On the contrary, as suggested below, they are increasingly likely to be settled by transnational courts and tribunals, and such means of settlement can no longer be sensibly regarded as an affront to UK sovereignty.
[38] It may be true that many who voted in the referendum to leave the European Union did so because of sovereignty. They wanted to be governed by their own laws, made by their own Parliament, and to be judged by their own courts. But in the fields in which the UK will want to cooperate in partnership with the European Union, this approach cannot be realistic. In the field of international trade, and some of the related areas in which the UK would wish to maintain close relations with the EU, it has for decades been commonplace for dispute mechanisms to be established which, in order to be effective, are bound to encroach on national sovereignty. The White Paper gives many examples.
[39] It should also be borne in mind that the experience of the European Union does not suggest that there have been serious threats to national sovereignty. It would be difficult to find examples of situations where the United Kingdom has been required, by the EU Court, or even by the EU generally, to do something seriously damaging to its interests, or where it has been prevented from doing something which was of great importance.
VI A limited continuing role for the Court?
[40] Moreover there seem to be some areas where some continuing role for the CJEU is necessary to attain an objective of importance in the national interest. To exclude that objective a priori, because of concerns about the role of the Court, may therefore result in very damaging self-harm.
[41} The clearest example is access to the EU internal market. Some measure of acceptance of the case-law of the CJEU may be involved in maintaining the fullest available access to the internal market, which is one of the United Kingdom’s priorities. According to the White Paper (section 8): “The Government will prioritise securing the freest and most frictionless trade possible in goods and services between the UK and the EU.” However, it is clear that to maintain such trade, it will be necessary to comply with evolving regulatory standards, which are often developed in the case-law of the CJEU. It is indeed that process which has largely made the single market the success which it has been. Some measure of acceptance of the future case-law of the CJEU may therefore prove necessary if the Government’s priority policy aims are to be secured.
[42] Another significant example may be the Euratom Community, in which it has been reported that the UK would prefer to remain, but considers that it cannot do so because of the jurisdiction of the CJEU. Departure from Euratom, it is suggested by commentators, has wide-ranging and potentially very serious implications for the UK’s nuclear industry; for research; for access to fissile materials and for the status of many worldwide nuclear agreements established under the Euratom Treaty, as well as other serious consequences (see for example The Times, 24 and 27 February 2017).
[43] It may well be that there are other legal difficulties in the UK remaining in Euratom; these difficulties are currently being debated. But the point remains that it is questionable whether unspecified and unsubstantiated concerns about the jurisdiction of the CJEU should be seen as an absolute barrier to what may be a vital national interest.
[44] A further example is the European patent system, in which the Government apparently wishes the UK to remain, no doubt recognising its advantages for industry and commerce. The proposed Unified Patent Court (UPC) was to be set up as an international patent court which would include UK judges, and in which the Government recently confirmed that it intended to take part. However, because of Brexit, it is uncertain whether it will go ahead as planned. The UPC will hear European patent disputes which are currently heard by national courts (under the Brussels Regulation referred to below). Under the UPC Agreement, the UPC must respect European Union law and cooperate with the CJEU by relying on its case law and by making references where appropriate. This may therefore prove to be an area where acceptance of the CJEU is necessary.
[45] The European trade mark system is another field in which the UK may wish to remain involved, as many EU trade marks might otherwise lose much of their value, and there might also be damaging new obstacles to trade with the internal market.
[46] Another area of high importance is judicial cooperation in civil and commercial matters (as distinct from judicial cooperation in criminal matters). Here there is currently an effective system, and one which is extremely important in practice, for the allocation of jurisdiction between the courts of the EU Member States and for the mutual recognition and enforcement of judgements among the Member States in civil and commercial cases. It would seem difficult to preserve this system in the absence of a regime equivalent to the Brussels (Brussels I Recast) and Rome Regulations, with the concomitant acceptance of the existing and future case-law of the CJEU. It is unnecessary to say more in this note, as the House of Lords Committee on the European Union has published on 20 March 2017 a report on this area, entitled “Brexit: justice for families, individuals and businesses?”, which examines the damaging and far-reaching consequences which may ensue.
[47] Finally there is the area of particular interest for this enquiry, that of police cooperation and the European Arrest Warrant, where continuing United Kingdom participation would seem a high priority for the Government.
[48] The Committee is interested in exploring the prospects of 'bespoke' adjudication arrangements bearing in mind the Government's stated intention to withdraw from the jurisdiction of the CJEU.
[49] It may be useful first to compare generally the role of the CJEU and the other dispute resolution mechanisms.
VII The CJEU and other dispute resolution mechanisms
[50] By way of introduction it may be useful to set out briefly the existing mechanisms under the EU Treaties. The principal mechanism involves both the national courts and the CJEU. Questions of EU law which arise in a case before any national court in the UK may be referred by the national court to the CJEU for a “preliminary ruling”. The ruling given by the CJEU on the interpretation of EU law is binding on the national court, and will be followed by all other courts in the EU, but the application of the ruling, and the finding of facts, are for the national court. This combination of transnational court and national court has proved remarkably effective, both in relation to the development of the internal market and across the whole field of EU law, and it is this procedure of preliminary rulings which has been copied in other systems, although not always with the same degree of success.
[51] Separately, and as already mentioned, the European Commission may take proceedings against a Member State which in the Commission’s view is infringing EU law. Such actions against a Member State may also be taken by another Member State, but Member States have been very reluctant to take such action. Action by the Commission has also been extremely effective in securing compliance by Member States with their obligations.
[52] It will not be possible to replace these procedures with equally effective procedures outside the EU. This can be seen from the Government’s White Paper, which devotes a section, section 2, to dispute resolution mechanisms. The section gives examples of dispute resolution mechanisms in existing agreements to which the EU or the UK is a party. Further details are given in Annex A to the White Paper.
[53] These mechanisms are in several important respects inadequate compared with the mechanisms under the EU Treaties outlined above. In the first place, in many instances the mechanism is available only to States. States are often reluctant to take up a dispute with other States; this is apparent from general experience, ranging from the EU itself to the World Trade Organization. Companies and individuals will have no remedy. Moreover, as the White Paper points out (2.8), unlike decisions made by the CJEU, dispute resolution in agreements made by the UK does not have direct effect in UK law.
[54] Many of the mechanisms outlined in the White Paper provide for arbitration rather than judicial settlement. Arbitration has some disadvantages compared with judicial settlement; notably, the procedure is not transparent, there may be difficulties with enforcement, and arbitration does not give rise to a body of case-law. Established courts have advantages over ad hoc tribunals, but it is difficult to provide for established transnational courts outside organisations such as the EU.
[55] The final sentence of the section in the White Paper dealing with dispute resolution mechanisms stresses the concern for UK sovereignty. It states, in very general terms, that “Any arrangements must be ones that respect UK sovereignty …” (2.10). Once again, however, it is unclear how that concern for UK sovereignty can be reconciled with any effective system of international dispute settlement.
VIII Police and security cooperation
[56] I limit my comments to what seem to me some essential points.
[57] A refusal to recognise the role of the CJEU could have the most serious consequences for police and security cooperation, which is one of the main priorities of the United Kingdom.
[58] In that context, the Committee has already drawn attention to some of the main issues. It stated in its report of 16 December 2016 that “it seems inevitable that there will in practice be limits to how closely the UK and EU-27 can work together if they are no longer accountable to, and subject to oversight and adjudication by, the same supranational EU institutions, notably the CJEU” (paragraph 38).
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[59] The Committee also stated: “There must be some doubt as to whether the EU-27 will be willing to establish the ‘bespoke’ adjudication arrangements envisaged by the Government, and indeed over whether such arrangements can adequately substitute for the role of the supranational institutions from the perspective of the EU-27. We anticipate that this issue may pose a particular hurdle for negotiations on the UK’s future relationship with EU agencies such as Europol, and also affect the prospects for maintaining mutual recognition of judicial decisions in criminal matters. It seems conceivable, therefore, that the Government will encounter a tension between two of its four overarching objectives in the negotiation—bringing back control of laws to Westminster and maintaining strong security cooperation with the EU. In our view, the safety of the people of the UK should be the overriding consideration in attempting to resolve that tension, and we urge the Government to ensure that this is the case” (paragraph 39).
[60] A further difficulty relates to exchanges of data for law enforcement purposes. Within the EU the corollary of such exchanges is observance of high standards of data protection and respect for privacy. The UK is likely to be required to satisfy those standards, which will evolve under the guidance of the case-law of the CJEU. This is simply an instance of a general principle: that in many fields of the UK-EU partnership, notably for access to the internal market but in other domains also, the UK will need to comply with evolving regulatory standards. It is difficult to see how this can be provided for without reference to the CJEU’s case-law. Nor will the UK be able to influence the evolution of the standards. As the Committee stated in the context of law enforcement:
“The need to meet EU data protection standards in order to exchange data for law enforcement purposes means that after leaving the EU, the UK can expect to have to meet standards that it no longer has a role in framing. More generally, the police and criminal justice measures that the UK currently participates in and may continue to have a stake in are liable to be amended and updated with the passage of time, when the UK is no longer at the table to influence the pace and direction of change. In preparing for negotiations, the UK Government will therefore need to explore from the outset how any agreement struck with the EU-27 at the point of exit can address this prospect, and the attendant risk to the UK” (paragraph 40).
[61] In chapter 2 of its report, on Europol and Eurojust, the Committee referred (paragraph 62) to “the practical impediments to devising something close to full membership of Europol for the UK after it leaves the EU”. One witness, Lord Kirkhope, warned that the “big problem” would be that Europol was accountable to EU institutions, “including acceptance of the competence—in interpretation terms at least—of the ECJ”. At the same time, “in many people’s minds, one of the great advantages of getting out of the EU is that we get rid of the ECJ and its competence and control over us”. That view will, however, seem grotesque to some. Moreover, it is also (and this might be seen by some as a substantial advantage) the Member States who are accountable to the ECJ.
[62] Lord Kirkhope questioned whether it would be “feasible or practical” to think that the other side in the negotiation would be prepared to discard the accountability and the controls that they were obliged to have now—to the Commission, the CJEU and the Parliament: “Are they going to abandon those to do a deal with us which allows us full access and confidence within the organisations and fully to serve within them?”
[63] In relation to the extremely important European Arrest Warrant, the Committee referred (at paragraph 133) to evidence that, while non-EU states had negotiated arrangements very similar to the EAW with the EU, there were “formidable obstacles to a similar arrangement being in place for the UK by 2019/20”. The Committee also warned that on their understanding, “a necessary condition of these arrangements is that the non-EU states submit to the jurisdiction of the CJEU to adjudicate upon their operation”. It is also absolutely clear from the report that the Council of Europe’s European Convention on Extradition would be a wholly inadequate substitute and that there is no other existing arrangement which would be an adequate substitute for the EAW.
[64] The Committee’s analysis raises further questions about the role of the “red line” in relation to the CJEU. It may seem clear that the UK would not accept agreement on a dispute resolution mechanism which specifically conferred jurisdiction on the CJEU. But it should be noted that, in any agreement, on any subject, between the EU and the UK – that is, any substantive agreement, not only the dispute resolution agreement – the terms of the agreement will be subject in any event on the EU side to the jurisdiction of the CJEU. If a question arises before any court of an EU Member State on the interpretation of any such agreement, that court will be entitled, and in some cases obliged, to refer questions of interpretation of the agreement to the CJEU. That jurisdiction is conferred by the EU Treaties and cannot be excluded. The interpretation adopted by the CJEU will be binding on the EU and the Member States. Although the ruling will not be binding on the UK, the alternative to accepting it might be that the dispute could not be resolved at all.
[65] But suppose that a separate dispute resolution mechanism, distinct from the CJEU, could be set up for a particular type of agreement, for example the agreement on the participation of the UK in Europol. A special tribunal is created to hear disputes arising between the UK and the EU Member States. Such a tribunal might well consider, on the question before it, whether it should follow the relevant case-law of the CJEU. Presumably the red line does not go so far as to prohibit the tribunal from taking account of the case-law of the CJEU. It is not therefore clear whether there is much significance, both in this context and in all other contexts of UK-EU agreements, in setting up a veto on the CJEU and seeking other forms of adjudication, or in seeking to exclude reliance on its case-law. In any event, it is the whole point of such agreements that they should be interpreted and applied in the same way by all States parties.
IX Conclusions and suggested recommendations
[66] Some conclusions and suggested recommendations can be set out in summary form as follows:
(1) It is not clear what is meant by regarding the CJEU as a “red line”. This is not a helpful term, and it does not designate a helpful approach. A more constructive approach would start from a more balanced view of the Court, and would approach its future role pragmatically, rather than ideologically.
(2) As a general policy, it would be useful to promote a more informed view of the role of the Court, a role which will still be important for the UK whatever the outcome of the negotiations.
(3) It is desirable to promote independent and effective dispute resolution mechanisms in all fields where the existing methods will no longer be available. The basic requirements are similar in all fields. It is particularly important that access should not be confined to States.
(4) The rhetoric of sovereignty is not helpful in relation to transnational dispute settlement. It is of the essence of such a system that there should be an independent decision-making body, whose decision is binding and final, subject only to any appeal mechanism which is provided within the system.
(5) Provision should be made for recognition and enforcement of all decisions and judgments in both civil and criminal matters between the UK and EU Member States, subject only to reasoned exceptions required by respect for human rights.
(6) It would be undesirable to allow unsubstantiated concerns about accepting the jurisdiction or the case-law of the CJEU to preclude or prejudice objectives for the future relationship with the EU which the Government regards as desirable or even necessary in the national interest,
(7) The UK will not be bound by decisions of the CJEU unless express provision is made to that effect in particular sectors. However, UK courts should be expected to take account of decisions of the CJEU, notably in relation to the development of regulatory standards in all areas where there are agreements between the UK and the EU/EU Member States.
(8) More generally, the role of the CJEU will remain important for the UK. According to the White Paper, the UK’s aim is a “new partnership with the European Union” and according to its “Conclusions”: “It remains overwhelmingly and compellingly in the UK’s national interest that the EU should succeed.” A successful EU will continue to depend on a successful Court of Justice.
22 March 2017
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