123.Professor Barnard explained why it was so important that any rights safeguarded in the withdrawal agreement should be enforceable:
“Will those rights, to use EU jargon, be directly effective, which means that I can go to the county court in Cambridge and get those rights enforced? … Will the British courts that are enforcing my rights be able to ask the Court of Justice what those rules mean? What does the withdrawal agreement, the divorce agreement, actually mean?”
124.Professor Lowe thought that the “safer and more sensible way” to safeguard EU rights in the withdrawal agreement was to “freeze the legal situation at the moment of exit and say that all rights that exist today will carry on until such time as they are repealed and altered by Parliament.” He thought this would be more consistent with “the political logic of Brexit” too. The withdrawal agreement could contain provisions stating that certain safeguarded rights would “not be phased out, or that some would be phased out over a certain period of time”. He also thought that the negotiations should consider whether the scope of the safeguarded rights would be limited to existing EU citizens or to future generations:
“If it were drafted with future citizens in mind, I think you would take a very different view from that which you would take if you were dealing with the phasing out of rights that would be lost by natural mortality and by time-limiting rights that corporations and so on had as a transitional measure.”
125.Mr Speaight agreed that the “wisest” legal course was to ensure that rights safeguarded in the agreement should be based on “the status quo at the moment of exit”. There would also be strong political pressure on the Government to ensure this was the case. An alternative mechanism, of allowing the safeguarded rights to evolve with EU law, sounded rather like a “blank-cheque arrangement under which the UK would enter a treaty agreeing to legislate domestically to match whatever future developments other countries might decide on.” He thought it would be better to have “something a little less rigid—perhaps an undertaking to give consideration”.
126.Lord Howard agreed: “It would be quite difficult to sign up to some unknown future evolution of European Union law. It would have to be the law as it was at the point of exit.” If changes were made to EU legislation post-Brexit, “for example, the European Union decided to provide some extra benefit … which it also conferred on UK citizens living in EU countries, we would consider at that stage whether we wanted to reciprocate”. He said that there could be divergence between UK law and EU law over time; that was a consequence of being “an independent country again”.
127.Professor Barnard thought that greater difficulty would come when EU law was amended:
“What will happen to legislation on, for example, the public procurement directive? The current version, the 2014 version, is really quite different from the 2004 version. The fact that we implemented the 2014 directive a year ahead of time and copied its contents almost verbatim suggests that we like the directive very much and got what we wanted in the negotiations. What happens when that directive gets amended? By definition, we will not have been involved in the negotiations. What will happen to the amendments? Will we voluntarily assume them in order to keep our regime up to date with the EU regime?”
128.Professor Douglas-Scott said that a further problem with freezing EU law in national law was that much of the EU law made specific reference to EU institutions:
“You do not necessarily have a provision of law that just sets out the law and says that these are the rights or whatever that people have; there may be a reference to the duties of the Commission. So you would have to go through the law quite carefully to see what you would do in such cases; otherwise, you would have a reference to an institution that we were no longer bound by treaty to have any relations with.”
129.Professor Barnard drew our attention to the approach of the Swiss courts to taking account of developments in EU law. Switzerland had a series of 120 bilateral agreements with the EU, which were divided into groups. If one of the agreements in a group was breached by either Switzerland or the EU, the rest of the agreements in the group would be invalidated. Despite the theoretical autonomy of the Swiss courts, in practice they closely followed CJEU judgments:
“They look at the judgments and, in the past, the judgments of the Court of Justice had ‘persuasive effect’. They then waited for a judgment of the Swiss Supreme Court to say, ‘This does apply in Switzerland’. This became very onerous in Switzerland, so, eventually, in 2009, the Swiss Supreme Court said, ‘We will assume that we will take on the evolution of case law unless there is good reason not to’. So what is happening is that Switzerland very closely mirrors—admittedly in areas covered by the agreements—what is decided at least by the Court of Justice, because Switzerland is very worried that otherwise its law will become out of date.”
130.She gave the example of competition law, where UK competition legislation mirrored EU law. It was widely thought it would continue to do so, not least because EU competition law had such strong extraterritorial effect. So in that area it seemed “inevitable that we will have to not just pay lip service to following what the Court of Justice does but … take on board any new changes.”
131.Professor Barnard thought that, because “under the great repeal Bill, all EU law will become part of UK law”, it was very likely that CJEU judgments “will have a very strong persuasive effect, if not full precedential value.” This could change with the passage of time, as the Government decided to repeal EU laws in particular areas. Mr Speaight agreed: “if we are entering an international agreement the purpose of which is to preserve existing acquired EU rights, we certainly ought to respect the decisions of the Luxembourg court on what those rights mean.” Professor Barnard thought that CJEU judgments “handed down pre-Brexit will have the force that they already have under the European Communities Act.”
132.Lord Howard expected that the forthcoming Great Repeal Bill would make provision for what was to happen to EU law after Brexit: “A sensible starting point would be for all EU law to be translated into UK law and then, over a period—not all EU law is bad; we would not want to get rid of it all—Parliament and the Government would consider which bits of EU law they wanted to keep and which bits they did not.” His views on the status of CJEU judgments post-Brexit differed from that of Professor Barnard and Mr Speaight: he thought they would have no formal status. A national court could give weight to them in the same way it did “to courts in other parts of the world that had considered similar questions”, but it would not give them as much weight as decisions of Commonwealth courts, “because their system of law is much more similar to ours than those of the EU”.
133.Professor Lowe said that, while the mechanisms for enforcing the withdrawal agreement would be the normal mechanisms of national legal systems, it would be possible “to add on to the withdrawal agreement some mechanism for handling the matter at a higher level.” If the UK Government considered that an EU Member State was not adequately respecting the rights that it believed were safeguarded for UK citizens abroad, that failure could then be followed up through some mechanism with the EU and/or the Member State concerned.
134.Although not raised as an issue by any of our witnesses, we note that a 2006 agreement between the EU and two EEA States, Iceland and Norway, on extradition procedures contains provisions requiring the two-way transmission of developing case law, including the following Articles on “dispute settlement” and “case law”:
“Any dispute between either Iceland or Norway and a Member State of the European Union regarding the interpretation or the application of this Agreement may be referred by a party to the dispute to a meeting of representatives of the governments of the Member States of the European Union and of Iceland and Norway, with a view to its settlement within six months.
“The Contracting Parties, in order to achieve the objective of arriving at as uniform an application and interpretation as possible of the provisions of this Agreement, shall keep under constant review the development of the case law of the Court of Justice of the European Communities, as well as the development of the case law of the competent courts of Iceland and Norway relating to these provisions and to those of similar surrender instruments. To this end a mechanism shall be set up to ensure regular mutual transmission of such case law.”
135.Thus the duty to keep under review the respective case law of the parties to the agreement is reciprocal. Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway.
137.The majority of the safeguarded rights are likely to be reciprocal with EU rights, which means that they will have to be applied so far as possible uniformly. EU law will evolve over time, and national legislation and its interpretation by the courts will have to evolve accordingly. We recommend that a reciprocal mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law.
138.The experience of the EEA States and Switzerland in this regard will be instructive. The 2006 extradition agreement between the EU, Norway and Iceland on extradition procedures, for example, may be a helpful precedent. The fact that the duty to keep under review the case law of the respective parties is reciprocal is particularly important: Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway.
164 Council Decision 2006/697/EC of 27 June 2006 on agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway, (21 October 2006)
165 , Articles 36 and 37