Brexit and the CJEU.

Prime minister Theresa May last Tuesday vowed to end the influence of the Court of Justice of the European Union (CJEU) over UK law, in a much-trailed speech in which she confirmed the UK would not remain a member of the single market.

The Prime Minister confirmed that remaining in the single market would mean ‘not leaving the EU at all’ as it would have to accept continued jurisdiction of the CJEU, which she said would have a ’direct legal authority in our country’.

“Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast,” Mrs May said. “And those laws will be interpreted by judges not in Luxembourg but in courts across this country.”

Whilst this portion of the speech provided clarity and certainty to the legal world regarding the CJEU, understandably the general response to the speech was a cautious one.

Bar Chair Andrew Langdon QC said: “[Tuesday’s] speech from the prime minister has provided some much needed clarity on the government’s direction of travel over Brexit. Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the prime minister’s welcome reassurance that the UK will remain open to international talent.”

After all, for all of Mrs May’s words, it should be noted that withdrawing from the jurisdiction of the CJEU is easier said than done. Moreover, the Prime Minister might not actually want a rapid withdraw from the CJEU: she stressed there would be a transition phase, and an implementation phase that would deliver the full future relationship going forward. She has been careful to reassure businesses by highlighting the intention for the continuity of laws post-Brexit.

Another consequence of leaving the CJEU is that the recognised jurisdictional rules on recognition and enforcement embedded in the EU framework would no longer apply. However, the UK and EU will be open to agree bespoke arrangements based on their mutual interests, which may go beyond existing conventions.

May’s commitment to leaving the CJEU appears to contradict the government’s previously signalled intention to accept aspects of CJEU authority by agreeing to sign up for the European Unified Patent Court (UPC), part of which will be based in London.

Last week, The Law Society listed continued access to the CJEU as a priority for English and Welsh lawyers. In its submission to the Department for Exiting the European Union and the Ministry of Justice, Chancery Lane also said the UK should focus on ‘maintaining, or introducing arrangements equivalent to EU directives on establishment and professional qualifications, mutual recognition and enforcement of judgments and maintaining collaboration in policing, security and criminal justice.

In her speech, Mrs May did stress she wanted the UK to create its own laws but confirmed that EU law would, at least temporarily, remain in place after UK withdrew from the EU. She said:

“The same rules and laws will apply on the day after Brexit as they did before. And it will be for parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”

May also agreed with Chancery Lane’s calls for collaboration in policing, security and criminal justice saying: ‘I want our future relationship with the EU to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.’

It should be noted that whilst Mrs May might have a stance on the legal issues and ramifications of the vote to Leave, she must acknowledge the position of the EU, and the Member States who will form a united bloc during the negotiation period.

Indeed, Joseph Muscat, Prime Minister of Malta – which has assumed the EU’s rotating Presidency – recently stated that EU law will continue to apply in the UK as an essential part of any transition deal. He stressed that the writ of the EU court was an essential part of any deal to smooth the path to Brexit, saying:

“It is not a transition period where British institutions take over, but it is a transition period where the European court of justice is still in charge of dishing out judgments and points of view.”

Interestingly, whilst the EU’s chief negotiator, Michel Barnier, has spoken in private about avoiding an overly comfortable transition, Mr Muscat’s comments marked the first time an EU leader has publicly stated that the CJRU must be part of a transitional deal.

Clearly, EU law and the CJEU will play an important role during the Brexit negotiations. So, law students – expect to still be subject to studying EU constitutional law for a while yet.

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