Amid much media speculation, the Government has published its position paper on post-Brexit relations between the UK and the Court of Justice of the European Union. It begins
“1. In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU)”
– which some critics claim is a “climb-down”, arguing that the word “direct” leaves room for the CJEU to continue to influence UK jurisprudence.
The paper sums up the UK’s preferences like this:
“3. The UK will take steps to implement and enforce our agreements with the EU within our domestic legal context. This will include providing for the appropriate means by which individuals and businesses can rely on and enforce rights contained in any agreements. This will be underpinned by the creation of international law obligations which will flow from our agreements with the EU…
4. There are a number of existing precedents where the EU has reached agreements with third countries which provide for a close cooperative relationship without the CJEU having direct jurisdiction over those countries. There are a variety of ways in which the parties to those agreements have reassured each other on both the implementation of, and enforcement and dispute resolution under, the agreements.”
The paper concludes as follows:
“65. The agreements governing the UK’s withdrawal from, and future partnership with, the EU will cover a broad range of areas of cooperation. Those agreements should set out clear means by which the terms of the agreements should be implemented and enforced within the UK and the EU. They should also establish a mechanism for the resolution of disputes concerning those agreements.
66. As outlined in this paper, the approaches towards enforcement and dispute resolution should:
- maximise certainty for individuals and businesses;
- ensure that they can effectively enforce their rights in a timely way;
- respect the autonomy of EU law and UK legal systems while taking control of our own laws; and
- continue to respect the UK’s international obligations.
67. There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements falls under the direct jurisdiction of the CJEU.
68. The precedents examined in this paper demonstrate that there are a number of additional means by which the EU has entered into agreements which offer assurance of effective enforcement and dispute resolution and, where appropriate, avoidance of divergence, without necessitating the direct jurisdiction of the CJEU over a third party. Such an arrangement, whereby the highest court of one party would act as the means of enforcing or interpreting an agreement between the two parties, would be exceptional in international agreements.
69. The UK will therefore engage constructively to negotiate an approach to enforcement and dispute resolution which meets the key objectives of both the UK and the EU in underpinning the effective operation of a new, deep and special partnership.”
Speaking on Today on Radio 4 this morning, 23 August, in advance of publication, Justice Minister Dominic Raab said that “some form of arbitration” would be needed, but that arbitration would not be akin to a European court. Under an arbitration agreement, disputes are settled by a neutral third party; and Mr Raab suggested a mechanism under which the UK and the EU could each appoint an arbitrator and agree jointly on the appointment of a third. Challenged on the inclusion of the word “direct” in the position paper, he said:
“There will be no jurisdiction of the European Court any more than the UK Supreme Court over disputes between the UK and the EU, but as a voluntary matter of practice, totally within our control, of course the UK will keep half an eye on what the EU does, just as the EU will do, keep half an eye on what the UK does.”
None of this – ostensibly – has much to do with “religion”. In practice, however, how EU law relates (or fails to relate) to domestic law is going to have all sorts of practical consequences for religious organisations. Data protection, travel, telecommunications and environmental protection are some of the most obvious areas that impinge on church communities – but readers can no doubt think of several others.