Role of CJEU post-Brexit to be considered by House of Lords inquiry

The AmeriKat's cousin, the Sand Cat, is as elusive
as understanding what the UK Government
is actually going to do with respect of the CJEU
post-Brexit

The EU Justice Sub-Committee of the House of Lords' EU Committee will consider enforcement and dispute resolution post-Brexit as part of an inquiry launched Wednesday.  The inquiry will focus on whether there is a continuing role of the CJEU post-Brexit and how EU law will be dealt with in national courts.  Written comments are due by Friday, 19 January 2018.

Baroness Kennedy, the Chairman of the EU Justice Sub-Committee, stated that “The evidence that we received from four of the UK’s most senior former judges highlighted the dangers of legal uncertainty post Brexit.".  Those four judges were:

• Lord Hope of Craighead (Former Deputy President of the Supreme Court)
• Lord Neuberger (Former President of the Supreme Court)
• Lord Thomas (Former Lord Chief Justice); and 
• Sir Konrad Schiemann (Former Judge of the CJEU).  

who, on 21 November 2017 gave evidence to the Sub-Committee to help scope out the inquiry into the post-Brexit jurisdiction of the CJEU.  An uncorrected version of the transcript of this oral evidence can be found here.

Baroness Kennedy said that:

“It was apparent that the judges had significant concerns about the operation of ‘retained EU law’ in the UK under Clause 6 of the European Union (Withdrawal) Bill... In addition to concerns about the wide discretion that might be given to the judiciary to take what might be seen as ‘political’ decisions, it is also far from clear that the provisions relating to the interpretation of retained EU law under Clause 6 of the Bill allow for a smooth transition. The Bill was clearly not drafted with a transitional period in mind. It would preclude references to the Court of Justice of the European Union, and not require UK domestic courts to take account of post-Brexit EU law, despite the fact that the UK may continue to be effectively bound by EU law during the transitional period.” 

Lord Thomas

Lord Thomas also raised the influence of the UK in law post-Brexit.  This is one of the issues that the European Law Institute is working on (of which he is a member of the executive committee).  He stated:

"...one of the very big issues that the Committee may wish to think about in due course is how we, in a relatively small jurisdiction set between two very large jurisdictions, the United States and the European Community, will have an influence on the fashioning of the law for this new marketplace once we leave the Community. It is quite a significant issue, because it is inconceivable that being a relatively small country interposed between many other large trading blocs we would have a regime that people would be very happy to go along with. Our better course is to try to influence the other regimes and hope that they produce some kind of overall uniformity.

This is a very, very large topic; it is the future development of our law that is sometimes lost sight of in the debate. We look to the past, but it is equally important to look to the future and how we mould our law, bearing in mind the small size of our jurisdiction in comparison to the United States and Europe."

The inquiry will address the following issues:

• Whether there could be a role for the CJEU in the UK post-Brexit.

• How the Government can deal with questions relating to EU law in the domestic courts post-Brexit and during any period of transition (including the potential for divergence between UK law and EU law).

• The impact Brexit will have on the UK’s ability to influence the development of the law in other jurisdictions including the EU and the United States.

• The potential impact of excluding the jurisdiction of the CJEU, both on UK domestic law and on securing a workable Withdrawal Agreement and any transitional arrangements under Article 50.

• Whether anything can be learned from the EFTA Court model, or other alternative models for dispute resolution.

• The most appropriate method of enforcement and dispute resolution in respect of the Withdrawal Agreement and subsequent partnership arrangements with the EU.

• If UK citizens should have a direct right of access to any new enforcement or dispute resolution procedures (or whether there should be a reference procedure, as currently exists with the CJEU).

The inquiry was launched prior to Friday morning's announcement of heads of agreement being agreed between the UK and EU negotiators during Phase 1 of the Article 50 negotiations.  Paragraph 38 of the Joint Report  summarizing the agreement states that with respect of rights for citizens established by Union law, "the UK courts shall...have due regard to relevant decisions of the CJEU after the specified date [i.e. at the time of the UK's withdrawal]..." and to "...establish a mechanism enabling UK courts or tribunals" to refer questions to the CJEU on those rights.

The AmeriKat's general feeling about the UK
Government's preparations for a post-Brexit life

Paragraph 91 also states that on civil and commercial maters there needs to be "legal certainty and clarity". It provides that Union law should continue to govern conflict of laws for contractual and non-contractual matters should continue for contracts and damage occurring before the withdrawal date (i.e. Rome I and II Regulations).  Paragraph 91 concludes:

"There was also agreement to provide legal certainty as to the circumstances under which Union law on jurisdiction, recognition and enforcement of judgements (sic) will continue to apply, and that judicial cooperation procedures should be finalised."

This sounds like its pointing to the Brussels Regulation (recast).  But, like with much of the Joint Report, it is what is not being said that is more interesting (and worrying) for us lawyers - be it of the IP persuasion or not.

The AmeriKat does not believe that Friday's announcement will undermine the Sub-Committee's inquiry.  If anything, the agreement at paragraph 38 that the CJEU's case law would continue to be referred to and applied by domestic courts with respect of citizen rights created by Union Law post-Brexit demonstrates the importance of the inquiry.  By analogy, intellectual property rights created by Union law should also be subject to the same fate.  Further, as noted at paragraph 5 of the Joint Report, the agreement was made  "[u]nder the caveat that nothing is agreed until everything is agreed".  As such, the fence posts may well move again and could move in response to the House of Lord's inquiry during Phase 2 of the negotiations.

For us in IP, especially those interested in the Unified Patent Court, the House of Lord's inquiry may be an opportune moment to outline how IP rights owners and users would like to see the operation  and collaboration of the UK's domestic courts and tribunals with those in Europe, including the application of Union law, post-Brexit.

Written evidence can be submitted here
Call of Evidence here
Brexit:  enforcement and dispute resolution inquiry website here
Lords Select Committee website here
Transcript of oral evidence on Jurisdiction of the EU here