A House of Lords committee has today called for evidence as it opens an inquiry into the jurisdiction of the Court of Justice of the European Union post-Brexit, along with the questions of enforcement and dispute resolution in respect of future arrangements with the EU.

Following a session with four senior retired judges on 21 November, the EU Justice Subcommittee wishes to consider:

  • whether there could be a role for the CJEU in the UK post-Brexit;
  • the most appropriate method of enforcement and dispute resolution in respect of the Withdrawal Agreement and subsequent partnership arrangements with the EU;
  • how the Government can deal with questions relating to EU law in the domestic courts post-Brexit and during any period of transition;
  • the impact Brexit will have on the UK’s ability to influence the development of the law in other jurisdictions including the EU and the United States;
  • whether UK citizens should have a direct right of access to any new enforcement or dispute resolution procedure.

The judges who gave evidence were Lord Hope of Craighead, convener of the crossbench peers and former Deputy President of the UK Supreme Court of the United Kingdom; Lord Neuberger of Abbotsbury, former President of the UK Supreme Court; Lord Thomas of Cwmgiedd, former Lord Chief Justice of England & Wales; and Sir Konrad Schiemann, former judge at the Court of Justice of the European Union. (Click here for a transcript of their evidence.)

Chairman of the committee Baroness Kennedy of The Shaws explained:

"The evidence that we received from four of the UK’s most senior former judges highlighted the dangers of legal uncertainty post-Brexit.

"It was apparent that the judges had significant concerns about the operation of ‘retained EU law’ in the UK under clause 6 of the European Union (Withdrawal) Bill. The former Lord Chief Justice, Lord Thomas of Cwmgiedd, warned that there could be a ‘very real problem for future judicial independence and the rule of law if this is not clarified'. In addition to concerns about the wide discretion that might be given to the judiciary to take what might be seen as 'political' decisions, it is also far from clear that the provisions relating to the interpretation of retained EU law under clause 6 of the bill allow for a smooth transition. The bill was clearly not drafted with a transitional period in mind. It would preclude references to the Court of Justice of the European Union, and not require UK domestic courts to take account of post-Brexit EU law, despite the fact that the UK may continue to be effectively bound by EU law during the transitional period.

"Going forward, the Government will have to ensure that it can agree a clear, certain and robust enforcement mechanism to ensure that any rights and obligations under the Withdrawal Agreement (and subsequent partnership arrangements with the EU) can be upheld in the event of a dispute. The committee is seeking expert evidence on the most appropriate way of ensuring that dispute resolution procedures post-Brexit can be dealt with efficiently and effectively."

Click here to access the call for evidence and to respond. The deadline for submissions is Friday 19 January 2018.