Dispute resolution and enforcement after Brexit
Chapter 1: Introduction
This report
1.This report considers the structures that may be created to ensure effective enforcement and dispute resolution after Brexit. We have sought to provide both a summary of the potential challenges ahead and a practical model for dispute resolution procedures between the UK and the European Union going forward.
2.Under the provisions of Article 50 of the Treaty on European Union (TEU) the treaties will cease to apply to the UK after Brexit. The UK will become a ‘third country’ and will no longer have an obligation to implement EU law. The Government intends to repeal the European Communities Act 1972 through the European Union (Withdrawal) Bill, which will end the primacy and direct effect of EU law in the UK. This will have a profound effect on the UK legal system. The Government will also have to convert all the EU laws that it wishes to retain into domestic UK law, where this is possible.
3.One of the aims of the Government’s Brexit strategy is to end the direct jurisdiction in the United Kingdom of the Court of Justice of the European Union (CJEU). Finding an adequate replacement that will allow for the resolution of disputes between the UK and EU post-Brexit, while retaining a system through which individuals and businesses can rely on and enforce their rights, will be critical for the maintenance of the rule of law in the UK.
4.Any arrangements for enforcement and dispute resolution post-Brexit are likely to relate to three quite distinct matters:
(a)enforcement of any Withdrawal Agreement agreed under Article 50 of the TEU;
(b)arrangements during the proposed transitional (or implementation) period; and,
(c)arrangements relating to the future relationship (which have yet to be agreed, and which may simply focus on trade, but are likely to be more wide ranging).
5.Over the course of our inquiry, it became apparent that there was no ‘one size fits all’ dispute resolution model that could deal with all the issues caused by Brexit. The need for dispute resolution will arise in different circumstances. This is reflected in the structure of the report. The three above-mentioned issues are dealt with in turn. Following a short chapter which sets out the background (Chapter 2); Chapter 3 focuses on the Withdrawal Agreement; Chapter 4 considers the transitional period; and Chapter 5 examines the various options available for the future relationship.
6.The picture is further complicated by the fact that some elements of the Withdrawal Agreement (for example the arrangements relating to the Irish border) may be superseded by the future partnership agreement, while others (such as citizens’ rights and the financial settlement) will not.
7.In addition to the mechanisms relating to dispute resolution, we have also posed questions about how the UK legal landscape will be transformed (having specific regard to the rights of individuals and businesses). These issues are considered in Chapter 6.
The European Union Committee’s work
8.The report is part of a co-ordinated series of Brexit-themed inquiries launched by the European Union Committee and its six sub-committees following the referendum on 23 June 2016, which have aimed to shed light on the main issues likely to arise in negotiations on the UK’s exit from, and future partnership with, the European Union. It draws on evidence provided to us in six evidence sessions held between November 2017 and March 2018.
Our inquiry
9.On 21 November 2017 we held a scoping session, taking evidence from four retired senior judges: Lord Neuberger of Abbotsbury (the former President of the UK Supreme Court); Lord Thomas of Cwmgiedd (the former Lord Chief Justice of England and Wales); Lord Hope of Craighead (the former Deputy President of the Supreme Court); and Sir Konrad Schiemann (a former judge of the European Court of Justice). We subsequently published a call for evidence with detailed terms of reference on 6 December. This is set out at Appendix 3 to this report.
10.On 16 January 2018, we took evidence from the former President of the EFTA Court, Carl Baudenbacher, and a senior official from the EFTA Surveillance authority, Catherine Howdle. We heard evidence from Professor Catherine Barnard (University of Cambridge) and Hugh Mercer QC (Essex Court Chambers) on 6 February. On 27 February we took evidence from Professor Christa Tobler (Europainstitut der Universität Basel and Leiden University); Professor Graham Gee (University of Sheffield); Professor Valsamis Mitsilegas (Queen Mary, University of London) and Raphael Hogarth (Institute for Government). On 20 March we heard from Martin Howe QC (8 New Square) and Sir Richard Aiken (a former judge of the Court of Appeal). Finally, on 27 March we took evidence from Ministers representing both the Department for Exiting the European Union (DExEU) and the Ministry of Justice: Suella Fernandes MP and Lucy Frazer QC MP.
11.We received 21 written submissions in response to our call for evidence. A list of those who contributed is included at the back of this report and all written submissions can be found on our website.1 We are grateful to all those individuals and organisations who have engaged with our inquiry and provided us with useful evidence.
12.We make this report to the House for debate.
1 House of Lords EU Justice Sub-Committee, ‘Brexit: enforcement and dispute resolution inquiry’: https://www.parliament.uk/brexit-enforcement-dispute-resolution/ [accessed 30 April 2018]