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

Lord Hannay of Chiswick Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, it is of course pure coincidence that we should be debating the excellent report by the sub-committee of the noble Baroness, Lady Kennedy, on the first day of what is likely to prove a complex and protracted endgame in the Brexit negotiations. But it is, I would suggest, entirely appropriate because, as other speakers have said, this is a crucial issue and is seen by all those concerned as unresolved as yet.

We have to look at both the implications of dispute settlement procedures for the transitional period, if we do leave the EU next March, and their implications for any UK-EU relationship in the longer term—a new relationship thereafter. I congratulate the noble Baroness on a report that sheds a good deal of light on this issue—which, I have to say, is more than the Government’s contributions so far have done, since they have consisted mostly of obfuscation and evasion. I congratulate her, too, on the clear and forceful way in which she introduced the report.

The Government contribution has been not only evasive but downright misleading. As recently as a month ago, the Prime Minister was still saying flatly that the European Court of Justice’s role in the UK would cease on 29 March 2019—although she must be perfectly well aware that she has been negotiating agreements that do not bear out that statement. After all, the deal struck on withdrawal last December and what was said then about the European Court of Justice’s role in dealing with the cases of European citizens, and the transitional period arrangement reached in March, both contain clear provisions for the ECJ to have a continuing role in the UK beyond exit date. I hope, therefore, that we shall have a little more candour from the Minister when he replies to the debate. I also hope that he will not retire behind a smokescreen in which the word “direct” is continually attached to jurisdiction, as if that were somehow an excuse for not saying anything about what is really going to happen.

I would like the Minister, if he can, to clear up the facts by dealing with the following three questions. First, is it not the case that the European Court of Justice will continue to have a role in this country in resolving disputes over EU citizens living and working here, beyond the exit date and beyond the date of the end of the transitional period? Eight years takes us a long way beyond that.

Secondly, is it not also the case that the European Court of Justice will continue to operate in this country, as now, on disputes right across the board for the duration of that transitional period, however long it may prove to be? That will be in a period when we no longer have any representation on any of the EU courts, but my understanding is that that point has been conceded.

Thirdly, is it not therefore inevitable that, if a deal is struck, the EU withdrawal implementation Bill will have to amend the provisions of the European Union (Withdrawal) Act 2018 terminating the ECJ’s jurisdiction on exit day? The only circumstances in which that amendment will not be needed, as far as I can see, is if there is no deal, which the Government say is not their preferred option. Have I got those three points right? It would be helpful to know.

So much for the past. As for the future relationship, no one who has mastered the complexities of the Chequers plan—not the most popular of documents, I know, but I have attempted to do so—and not just its provisions on trade but those on internal security and other matters can doubt that some elaborate and fireproof dispute settlement procedures will be required as an integral part of any such plan. No one who has anything to do with the European Union can doubt that it will insist on the European Court of Justice having a clear and important role in any such procedures.

If we accept the inevitability of those two points, I really do not see how the Government are right to avoid describing in more detail how those can be reconciled. I think I know why they do not do it, and I can answer the question—a little unfairly, perhaps—on behalf of the Minister: it is because they do not want to admit to their own supporters that the European Court of Justice will have a dispute settlement role here far into the foreseeable future. It would surely make more sense if the Government were to think a little more constructively about ways of handling this problem and the sensitive issues it raises, rather than pretending that the problem does not exist, which is very much their approach.

I regret that the Government took such a negative view about the idea of using the precedent of the EFTA Court in some way or another. I notice that the noble Lord, Lord Thomas, did not much like it either. I do not think that anybody is suggesting that it should be applied precisely, but the point about the EFTA Court is that it meets three criteria. One is that Britain would be represented on it. The second is that the European Court of Justice’s role is assured. The third is that its rulings are not directly applicable, although of course any party that rejected one would see serious negative consequences on the overall relationship. I think that they were a bit rapid in dismissing that. Even if it is probably unwise to talk about the EFTA court as if it itself was the answer, does it not provide a framework which is much closer to being the answer than the rather complex arbitration procedures put forward by the Government, which I frankly do not believe that the European Union will ever accept? I would like the Minister to address that, and not just in the terms in which the Government have addressed it in their response to the report.

When the history of the Brexit negotiations comes to be written, I do not believe that commentators will be particularly kind about the Prime Minister’s red line on the European Court of Justice. I think they are likely to regard it as totally unrealistic and incompatible with the wider objectives for a new relationship which the Government are in fact pursuing, a fact that I welcome. Moreover, they could well marvel at how much effort is being put into assailing the jurisdiction of a court whose rulings, over the 45 years of our membership, as the noble Lord, Lord Thomas, made clear, have far more often been beneficial to the UK than detrimental to it. However, it is not too late to change track. That red line about the European Court of Justice has been driven across multiple times, as I have tried to suggest, so why not now start to think constructively about dispute settlement, recognise a role for the ECJ in any such procedures, get to the negotiating table and get that settled?