Position paper highlights gulf in role of European Court of Justice post-Brexit
There is a ‘significant gulf’ between the positions of the UK and EU on the role of the European Court of Justice (ECJ) post-Brexit, a senior lawyer has warned.
Charles Brasted, partner at Hogan Lovells and co-leader of the firm’s Brexit Taskforce, said: ‘The EU’s stance, that it can be bound by a dispute settlement body other than the ECJ in only very limited circumstances, is fundamentally at odds with Theresa May’s commitment to remove the influence of the ECJ from the UK legal system.
‘It is likely that a constructive result will require compromises on both sides. It appears therefore that the ECJ will continue to play an ongoing but “indirect” role in the UK legal system after Brexit. That role will likely extend to influencing the interpretation and enforcement of the UK and EU’s obligations in the agreements they reach as part of the Brexit process.’
Prime Minister Theresa May has insisted the UK will ‘take back control of our laws’, and the government’s Repeal Bill provides that ECJ caselaw up to the point of departure only will have binding status.
However, the government appeared to soften its stance last week, in its position paper, ‘Enforcement and dispute resolution—a future partnership paper’.
Richard Bunce, litigation partner at Simmons & Simmons, said: ‘The government asserts that leaving the EU will mean an end to the “direct jurisdiction” of the ECJ.
‘It therefore appears tacitly to accept that the ECJ will continue to have an indirect role and therefore some influence over UK legislation and UK court decisions following Brexit.’
David Greene, NLJ consultant editor and senior partner at Edwin Coe, said: ‘The government set two red lines for the Brexit negotiations.
‘One of those was that the ECJ would no longer have any binding influence on the law of the UK. Any lawyer would have told you (as we all did) that that was not going to work, particularly when there is now bound to be a transition period.
‘Most practitioners will see this position paper as the marriage between slogan politics and the legal reality arising from 40 years of integration with the EU.’
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