Settling Disputes

The block over which the government are now stumbling is called ‘dispute resolution‘. There is substantial disagreement between the negotiators of the United Kingdom and of the European Union.

On the one hand, the EU has proposed that the European Court of Justice should be the final arbiter in the construction of the withdrawal agreement and any future problems, because it says that the agreement will embody many provisions of EU law: the CJEU has declared itself to be the only binding interpretative authority of EU law.

On the other hand, the United Kingdom has argued that it is unacceptable that the appeal body, the final resolution body, should be a court whose judges are drawn only from the continuing EU member states. That is the nub of the matter.

Of course, the issue is bedevilled by the irrational demonisation of the European Court of Justice, first by those who campaigned to leave the EU and later by the Prime Minister, who has lost no opportunity to declare that leaving the jurisdiction of the CJEU is one of her red lines. I have never understood how that court could have been painted in such scarlet colours. In the first place, its function has never been to lay down draconian law which binds us all in servitude, but to interpret law which, even if it starts with the Council of Ministers or the Commission, has been subjected to a democratic process in the European Parliament. The United Kingdom has, since joining the EU, had full representation in these three bodies.

Secondly, we have always provided a distinguished judge to sit on the court. Sir Konrad Schiemann, the former United Kingdom-nominated judge of the court between 2004 and 2012, said in evidence to the Lords EU Committee that,
“in the Luxembourg court the tradition is that you lose your nationality the moment you join the court, which makes no distinction between judges of one nationality and another. … The tradition was that you were not there to plug the point of view of your national Government. That was not your job. Your job was to try to decide the law in the light of the general European interest”.

That, indeed, is the way in which the Court of Justice has operated: it is not a court of competing national judges.

Thirdly, the United Kingdom has, through the power of its legal advisers and advocates, been very successful in the European Court of Justice. The European Commission does not bring cases that it does not expect to win. Of the 63 cases the Commission brought against the United Kingdom that resulted in rulings between 2012 and 2016, the UK submitted a defence in only 30 of those 68 and conceded the rest. In the cases the United Kingdom defended, its success rate was 53%. Its overall success rate of all cases in the period 2003-16 was 25%, the highest of any of the 28 member states. Penalties have never been imposed on the United Kingdom by the Court of Justice for failing to abide by its judgments. In other words, our Governments have always accepted its judgments, even in the cases that we have lost.

Is there not room for creative thinking? The institution of the European Court of Justice exists. Its physical building and its administration exist. The United Kingdom has played its full part in its procedures, has been part of its development and has been successful both in the judicial sphere and in advocacy before it. Would it not be sensible to create a special chamber of the European Court of Justice for dealing with disputes arising out of the special circumstances of our leaving the EU? We are not leaving the continent of Europe. The judges of that special chamber could comprise an equal number of members of the continuing court and members or former members of our Supreme Court, together with an eminent president from a neutral jurisdiction. This is the important point: since the Special Chamber would be a part of the Court of Justice, it could meet the European Union’s requirement that only that court can interpret provisions of EU law where that this necessary. At the same time, there would be participation from the United Kingdom.

This special chamber would be of particular advantage if disputes arose in respect of the future agreements: the elusive trade deal, agreements concerning our participation in existing EU programmes, the security stuff, the European arrest warrant, Interpol, data protection, family matters and in those areas where the Government wish to continue to participate and co-operate in other fields. It could also be a forum for pursuing individual rights, those of European Union citizens in the United Kingdom and United Kingdom citizens in the European state. We would not want European citizens in the United Kingdom to have remedies solely in the courts of this country if that meant that our citizens abroad in Europe would have remedies only from a European court.

I cannot help comparing the present impasse to the successful negotiations over Hong Kong, where the innovative principle of “one nation, two systems” was developed, and the Court of Final Appeal, which replaced the Privy Council, introduced non-permanent judges to supplement its Bench. Judges from the United Kingdom, Canada, Australia and New Zealand play a part in assisting the Bench in the Hong Kong court.

Would the Government’s aversion to the European Court of Justice, fuelled by the empty and ill-informed rhetoric of the Brexiters, stand in the way of such a solution? The Attorney General Geoffrey Cox’s idea of a stand alone arbitration panel has been rejected by the EU negotiators. If as I fervently do not hope, the Brexit project has to lumber on, my solution at least provides greater protection for our poor unfortunate citizenry.

* Martin Thomas is a Liberal Democrat member of the House of Lords and the party's Shadow Attorney General

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6 Comments

  • Richard Underhill 15th Nov '18 - 12:19pm

    Watching the parliamentary debate on the 568 pages of the EU dossier, there is a possible hint that the PM would like a free vote on the opposition benches on the issue in the “meaningful vote”.
    When the UK entered in 1972 the PM, Edward Heath, a former chief whip, arranged a free vote on the government benches.
    She has said nothing about a reshuffle, which she appears to need.

  • Richard Underhill 15th Nov '18 - 12:31pm

    If the PM follows the example of Gladstone, then Chancellor of the Exchequer, not the cat.
    She might reflect that he achieved the support of those who wanted to abolish the income tax and of those who wanted to make it permanent. The current debate on the EU makes clear that her proposal achieves less.

  • This sounds like wishing the horse was still in the stable even when the stable doors are closed after it has departed. If we leave the eu, we must have a free reign to accept the eu laws we want to and in those areas be subject to the ECJ’s rulings. I would rather go for the global institutions such as the UN. It is conceivable that we would in some areas have stronger regulations than the eu if the electorate want that such as animal rights, countering climate change and human rights.

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