Still in throes of its obsession with the Court of Justice of the EU (CJEU), the UK government has come up with a plan for how to replace its powers after Brexit. Once the UK leaves the EU, there must be a mechanism to enforce the withdrawal agreement and settle legal disputes. Currently the CJEU interprets EU law and settles disputes between individuals, EU institutions, and member states.
The EU would prefer this post-Brexit mechanism to be the CJEU. Theresa May, however, has made withdrawing from the CJEU a “red line” in Brexit negotiations (despite indications the line may be blurring). Unfortunately, the government’s proposals will make the administration of EU-UK justice less transparent, less respectful of sovereignty and the rule of law, and less accessible for ordinary people.
The UK government’s obsession with the CJEU is entirely irrational. The court is broadly good at what it does. Its judges are independent and expert, it is accessible to all, it makes its decisions in public and offers detailed reasoning and subjects arguments to detailed scrutiny. It boasts an effective upper chamber which allows parties to appeal against the first decision of the court and through which interpretations of the law are further refined and clarified.
It also considers, contrary to popular myth, the demands of sovereignty and democracy. Naturally, it sometimes makes decisions with which people disagree. This is the nature of the game. When there are opposing parties in a case, one will likely go home disappointed. Yet, even when it disappoints, the CJEU makes decisions according to standards of justice broadly equivalent to UK courts. (The same courts that the government describes as “effective”, “independent”, and committed to the rule of law, while advocating withdrawing from the CJEU).
The most obvious difference between the CJEU and UK courts is that some people who work at the former are not British. Yet it’s difficult to see why the nationality of the person giving a judgement should matter if that judgement is made according to broadly accepted standards of justice. Indeed, it may appear that any objection is based on one’s feelings about those from other countries, rather than one’s commitment to justice.
Who settles post-Brexit disputes?
The government’s post-Brexit plan offers several “precedents” for alternatives to the CJEU. Only three stand any real chance of offering an equivalent impact in practice.
The first is ad hoc arbitration tribunals. These are generally comprised of corporate lawyers rather than judges, make decisions in private without scrutiny, and are not bound by the decisions of previous courts. Competing tribunals have, in the past, come to opposite conclusions about the same issue. The high cost of arbitration means it is effectively restricted to the very rich.
The EU recently attempted to reform the arbitral system, creating a new “investment court system” to resolve disputes occurring under trade agreements with third countries. In this “improved” system, tribunals must be comprised of judges, and parties can appeal against the decision of a first-tier tribunal to a new appeals tribunal. Yet the appeals level in this system will not be able to make decisions that bind the lower tribunals, rendering it essentially pointless. The virtue of an appeal court is that it offers binding clarification of the law, this makes the law more predictable, a key tenet of the rule of law. The investment court system offers the appearance of rule of law principles without the inconvenience of implementing them in practice.
Another proposal from the UK government is a “joint committee” system. This is no better. It would have disputes resolved by a committee of civil servants from the UK and EU. These committees are already used for trade deals and, again, they meet in private and are inaccessible for ordinary people. Individual citizens would be entirely excluded from the process.
Ironically, given the government’s apparent distaste for decisions made by people who are not British, both of these mechanisms would require a significant role for EU lawyers and civil servants. They replace a court, applying principles of justice we would recognise in the UK, with EU or corporate apparatchiks freed from all accountability and transparency.
The least bad idea
The government’s best proposal is some form of loose association with the CJEU. This manages to offer all the disadvantages of membership of the court but with fewer benefits. By moving away from the court, the UK will no longer be able to appoint judges or advocates general (who submit legal arguments to high levels of scrutiny), British citizens will no longer be able to access the court. Yet all forms of association proposed by the government would involve the UK being bound, in some way, by the courts decisions. The UK will thus be committed to rules we have no say in making.
Open and transparent dispute resolution empowers individuals because it allows us to hold the powerful to account. The UK government’s proposals will remove a key mechanism for doing this, and replace it with something much less effective. This isn’t taking back control, in fact, the government has just moved to take control away from the British people.
Sam Fowles, Barrister and Academic, Queen Mary University of London
