Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Baroness Ludford Excerpts

Wednesday 17th October 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I, too, was delighted to serve under the splendid chairmanship of the noble Baroness, Lady Kennedy, who has introduced our report so comprehensively and indeed does a very good job of keeping us in order. It is also a pleasure to participate in a debate with colleagues from the sub-committee. I note that we now have two Lord Andersons. We have the noble Lord, Lord Anderson of Swansea, of that ilk, who is a valued colleague on the sub-committee, and we have the noble Lord, Lord Anderson of Ipswich. I am particularly pleased to take part for the first time in a debate with him because our paths crossed when he was the Independent Reviewer of Terrorism Legislation and I focused on EU justice and security matters as an MEP. His interest in the EU dimension set an example that was not always followed by British officials and institutions.

During the debate, we have noted various features common to Brexit negotiations as a whole that pop up in this area. I should just like to enumerate them. The first—the big elephant in the room—is, of course, the red line against the jurisdiction of the ECJ. It has bedevilled the whole of the negotiations, but particularly in this area, where its impact is greatest and most damaging. As my noble friend Lord Thomas of Gresford said, such prejudice against the court is fuelled by the empty and ill-informed rhetoric of the Brexiters. The noble Lord, Lord Anderson of Swansea, rightly described it as a “thick red line”: given the Brexiter confusion between the ECJ and the ECHR, perhaps it is “thick” in more ways than one.

The noble Lord, Lord Hannay, noted that the Prime Minister still said a few weeks ago that the role of the ECJ in the UK would cease. He rightly described that as misleading. I would go further: it is totally wrong in the light of the Government’s own contributions. Again, as the noble Lord, Lord Anderson of Swansea, said, “Now you see it, now you don’t”. The second common feature of the whole sorry saga of the Brexit negotiations is dishonesty and unreliability. What can we trust that we hear from the Government? Is it still going to be true tomorrow? “Will you still love me tomorrow?”

The third feature is that all of the alternatives to EU membership are more messy, more complicated, more difficult to follow and less transparent and accessible for citizens and businesses. As the noble Lord, Lord Bilimoria, said, we will have multiple systems of dispute resolution and enforcement. Some of those are the special regime for citizens’ rights, the withdrawal agreement, the transition and the future relationship. Then we have the dispute resolution between the parties and the attempt at private enforcement by citizens and businesses.

The fourth feature is a belief that everything is political, with a disdain for a so-called legalistic approach. This apparently applies to the debate on the Irish backstop. This pejorative term—it is used pejoratively—fails to recognise that the EU has a legal and constitutional order. It cannot just throw this over. I think that many Brexiters do not like courts and judges, full stop. We are undermining our negotiating ability by failing to recognise the fundamentals about the EU legal order. Linked to that is the complacent idea that the UK can expect a bespoke arrangement just to suit us because we are big, important and we are—well, us.

The fifth feature is the failure to put forward credible and workable proposals. As the noble and learned Lord, Lord Hope of Craighead, said, they have not surfaced. As the noble Earl, Lord Kinnoull, reminded us and as my noble friend Lord Newby mentioned on Monday, proposals always seem to be happening “soon”, “in due course” or “when the time is right”. That time is now. As the noble Baroness, Lady Shackleton, just said, we are deafened by the silence. This is creating enormous uncertainty and anxiety out there in the real world because the enforcement and dispute resolution options for the future relationship will be shaped by the closeness of the partnership. We are in that cart-before-horse situation where the Government’s failure after two years to decide precisely what model they seriously want to pursue has held back sensible discussion on mechanisms.

The July White Paper clarified what the Government meant by the term the Prime Minister had used in two speeches that the UK would “respect the remit” of the CJEU when participating in agencies and programmes. The White Paper explained that this meant respecting the court’s ability to adjudicate in cases of disputes about decisions made by those agencies “that affected the UK”. There was then rowing-back, a phrase used by the noble Lord, Lord Anderson of Swansea. He pointed out the words at the end of—I shall be precise—paragraph 38 in chapter 4.4.3, which added,

“noting that this would not involve giving the CJEU jurisdiction over the UK”.

We know, as the noble Lord, Lord Hannay, pointed out, that we have had lots of smoke and mirrors about direct and indirect jurisdiction, but how can the Government say that respecting the “remit” of the ECJ does not mean its jurisdiction? Please can the Minister precisely explain the distinction between those two terms?

Interestingly, the Government’s response to the report that we are now debating came just a week before the White Paper. It said that,

“if we agree the UK should continue to participate in an EU agency this would mean abiding by the rules”,

including that,

“the UK would have to respect the remit of the CJEU”.

But it added another rider:

“our Parliament would remain ultimately sovereign. It could decide not to accept these rules”.


It then had the grace to acknowledge that there would be consequences for our membership of the relevant agency; that is, Europol. It seems telling that, just a few months ago, the Government should say, “We’re going to respect the remit, but of course, at any time, our Parliament might decide in its sovereignty that it’s going to throw over those rules”. What is Mr Barnier meant to work on when he has this chopping and changing all the time?

Two areas have been cited in the debate where there will in any case be an element of jurisdiction of the court, direct or indirect: obviously, on the European arrest warrant, assuming that the problems about non-surrender of nationals do not bedevil our participation—a problem solved within the context of the EAW. But if, for instance, a UK surrender request to a French court is contested by the wanted person, the French court could refer that case to Luxembourg. To use a phrase of the noble and learned Lord, Lord Hope, we could not rely just on a “cordial, friendly understanding”; there would be legal norms to be enforced. The second area is seeking a data adequacy assessment, which will be made in the light of EU law.

The noble Lord, Lord Anderson of Ipswich, said that the EU and UK legal systems would be diminished by our non-participation in the EU’s legal order. UK lawyers have made a big and positive contribution to developing EU law, and its ending is much to be regretted. It was such an element of strength for us. In the whole justice and security area, we kept wanting opt-outs and so on; we have never played to our profound strengths in the legal area. Nowhere was that more obvious than in Luxembourg.

Unfortunately, the Government do not seem terribly interested in the loss of access to justice and enforcement of rights for citizens and businesses, which will be difficult particularly for small businesses. I, too, will be interested in the answers to the questions raised in our report, and expertly put by the noble Lord, Lord Anderson of Ipswich, about how that is supposed to work for citizens and individuals. That the Government seem so uninterested in that topic tells us all we need to know about “taking back control”. It actually means robbing people of their rights.

--- Later in debate ---

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, on behalf of the Government I very much welcome the EU Justice Sub-Committee’s report Dispute Resolution and Enforcement After Brexit. The detailed analysis and consideration of the areas covered by the report is a welcome contribution to the wider discussions on how disputes between the UK and the EU should be resolved after we leave in March 2019. The report was ably introduced by the noble Baroness, Lady Kennedy, and we are fortunate to have the benefit of her vast experience of these matters. I also thank noble Lords from all sides of the House for their constructive and insightful speeches during the debate.

I will say as much as I can on these matters and respond to as many questions as possible, but I ask noble Lords to accept that this is a live negotiation. Many of these matters are being discussed and negotiated on at the moment. Some parts are agreed; others are not. Some parts are agreed at the technical level; others are outstanding and waiting for related parts to be agreed. In some respects, therefore, it would not be helpful to go into too much detail on some aspects of the negotiations. Nevertheless, I will try to respond to as many of the points raised as possible.

Noble Lords have expressed concerns about how disputes will be resolved after the UK leaves the EU, in particular—this was referred to by many noble Lords—the proposal that the jurisdiction of the CJEU would be replaced by a judicial or quasi-judicial body to oversee disputes between the UK and EU. I assure noble Lords that, since the EU Justice Sub-Committee published its report in May, we have made significant progress in the negotiations on establishing appropriate and workable dispute resolution mechanisms. I would like to update noble Lords on these negotiations and note that the UK and the EU are close to concluding a withdrawal agreement that sets out the terms of the UK’s orderly exit from the European Union. The withdrawal agreement will provide important certainty to individuals and businesses, setting out the deal on citizens’ rights, on the financial settlement and on the implementation period. We are close to reaching agreement on a number of other separation issues, which will provide for winding-down provisions across a number of areas as we leave—for instance, cases pending at the CJEU and ongoing customs processes.

The noble Baroness, Lady Kennedy, asked specifically for an update on these ongoing judicial proceedings. I can assure her that the relevant provisions will set out the process winding down UK involvement in legal proceedings before the CJEU in an orderly manner. These will support the legitimate expectations of, and efficient access to justice for, those who have spent time and money progressing cases through the UK and the European court systems, allowing all cases in train at the end of the implementation period to continue to their natural conclusions. Once the final areas of the withdrawal agreement have been settled, we will consider the necessary legislative requirements for those areas. I realise that this will be a disappointment to the noble Lord, Lord Thomas, in particular, but it remains the Government’s position that, in leaving the European Union, we will bring about an end to the jurisdiction of the CJEU in the United Kingdom.

A number of noble Lords asked me about judicial co-operation and the European arrest warrant. We are pleased that we have reached agreement with the EU on the content of Part Three, Title V, of the withdrawal agreement on ongoing police and judicial co-operation in criminal matters. Title V provides clarity and legal certainty for individuals, for law enforcement stakeholders and the judiciary in the unlikely event that we do not reach agreement on future police and criminal justice co-operation as part of our future security partnership with the EU. We want to continue to play a leading role in Europol and Eurojust, and we will continue to do so during the implementation period.

[Baroness Ludford]

I am sorry to interrupt the Minister—he might be going on to answer this question—but he has just repeated the mantra about ending the jurisdiction of the court, and he has cited the fact that we want to stay part of agencies such as Europol and Eurojust. How is the remit of the court, in respect of enforcing the rules regarding the UK, going to work if we do not recognise the jurisdiction of the court?

[Lord Callanan]

If the noble Baroness will have a little patience, I will come on to talk about the agencies and the remit of the ECJ.

Withdrawal from the EU will mean a return to the situation where the UK and the EU have their own autonomous legal orders. The Government agree with the committee’s observation that the withdrawal agreement and the future partnership must respect the autonomy and integrity of both legal orders.

On the points made by the noble Lords, Lord Thomas and Lord Anderson, this is not about demonising the CJEU in any way. Our position has always been that we respect the role of the CJEU as the ultimate arbiter of the meaning of EU law, and we respect the autonomy of the EU legal order, as indeed we expect it to respect ours. However, it would be wholly unprecedented for a non-member state to be subject to the jurisdiction of the CJEU, and we do not believe that it would be appropriate for the court of one party to resolve disputes between the two.

There are, of course, limitations under EU law on the extent to which the EU can be bound by an international judicial body other than the CJEU. Therefore, we will also need to find a principled and pragmatic solution to respecting our unique status as a third country with our own sovereign legal order. For these reasons, the EU and the UK need to agree on how both the provisions of the withdrawal agreement and our new deep and special partnership can be monitored and implemented to the satisfaction of both sides, and how any disputes that arise can be resolved.

As the committee acknowledged in its report, there is not a one-size-fits-all solution for dispute resolution after our exit. Despite the fact that dispute resolution mechanisms are common within international agreements, the form these mechanisms take varies considerably across the spectrum of agreements, given the different areas of international co-operation, and consequently the varied nature of potential disputes that could arise. That is why we are negotiating bespoke mechanisms across the different areas where we need a dispute resolution mechanism.

The sub-committee and noble Lords have raised concerns on the rights of EU citizens. Let me assure the House that, in setting out governance principles, we will ensure that the rights of EU citizens living in the UK, and of course UK nationals living in the EU, are safeguarded. This reflects the fact that the Prime Minister made it clear that that was her first priority for negotiations. The agreement reached in December and set out in our joint report with the Commission, alongside Part Two of the withdrawal agreement, will provide these citizens with certainty about their rights going forward.

In the UK, EU citizens’ rights will be upheld by incorporating Part Two of the withdrawal agreement into our law. As the noble Lord, Lord Hannay of Chiswick, noted, there will be a time-limited period when our courts may choose to refer questions on specific points of law concerning citizens’ rights to the CJEU for a decision, having had regard to whether relevant case law exists, but it will be up to our courts to decide whether to do so. Let me reassure the noble Lord that it will be for our courts to make final judgments, not the CJEU. Any continuing CJEU role in our legal system will be temporary and narrowly defined. The ability of UK courts to make voluntary references to the CJEU will, as the noble Lord is aware, be time-limited to eight years. These short-term, limited arrangements have been agreed to help ensure consistency and certainty for citizens over these new rights as they are implemented.

For the implementation period to operate effectively, the UK will need to remain in step with the EU. The withdrawal agreement will be underpinned by a duty of good faith, with a joint committee in place enabling either side to raise issues or concerns. These arrangements will help ensure the implementation period works properly for both sides. We have agreed that, for the implementation period, the existing EU mechanisms for supervision and enforcement will apply, including continued CJEU jurisdiction. This is necessary so that there will be one set of changes for businesses and people. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hannay of Chiswick, who raised their concerns about the need for certainty during the transition period. This does not change the fact that in the long term, after the end of the implementation period, the UK will no longer be under the jurisdiction of the CJEU.

Let me answer the point raised by the noble Lord, Lord Anderson of Swansea, by making it clear that the implementation period will not be extended. I thank him for the offer of co-operation from the Bar Council; we continue to have regular consultations with lawyers in practice, as well as the judiciary, on all aspects of the complicated legal mechanisms in both the withdrawal Act and the future partnership.