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Brexit: Court of Justice of the European Union

Volume 782: debated on Thursday 30 March 2017


Asked by

To ask Her Majesty’s Government what assessment they have made of the impact on the United Kingdom’s economic interests of the pledge to bring an end to the jurisdiction of the Court of Justice of the European Union in the United Kingdom.

My Lords, the Prime Minister has clearly set out the position that the jurisdiction of the CJEU in the UK will end. Work is under way to ensure that the impact of this across all the UK’s interests, including economic, are understood and factored into decision-making. After we leave the EU, our laws will be made and enforced in London, Edinburgh, Cardiff and Belfast, and they will be based on the specific interests and values of the UK.

My Lords, the Minister has in fact reflected what the noble Baroness, Lady Williams, has just said. But there appears to have been a dose of cold reality, because yesterday’s Article 50 letter to President Tusk states that, in trading with the EU, UK companies,

“will have to align with rules agreed by institutions of which we are no longer a part”.

That means EU rules made by the EU institutions and enforced by the European Court of Justice. This will reassure many companies and universities, whose cross-border research partnerships, for instance, depend on the recognition of EU law. But how does it square with assertions that all laws will be made in the UK and that our courts will be the final decision-makers? It is not true, is it? An exercise in deceit and smoke and mirrors is going on.

The position is very clear. I am aware that the noble Baroness is something of a stranger to optimism, but it is very clear that we are able to leave the EU, we are able to leave the jurisdiction of the European Court of Justice and we are able to operate within the confines of our own legal systems—which are multiple in the United Kingdom and which, incidentally, enjoy a worldwide and global reputation, and quite rightly so. Of course we will look closely at the impact of ending CJEU jurisdiction, including working out what our future resolution mechanisms will look like—but it is quite wrong to suggest that there is no future outwith the European Court of Justice.

My Lords, does my noble friend not think it absurd that the Liberals are arguing that, in order for us to thrive economically, it is necessary for us to be subject to the jurisdiction of a foreign court? Is it not as absurd as trying to argue that in order to export things to the United States, the Supreme Court should have jurisdiction over the UK? Is it not high time that they got behind the Prime Minister in the interests of the country and stopped fighting battles they have already lost?

I thank my noble friend for a predictably helpful and constructive intervention. I suspect that the answer to all his questions is yes.

Is it not true, however, that if there are changes following rulings of the European Court of Justice, the UK will have the choice of either following those, albeit through our own mechanisms here at Westminster, or ignoring them, in which case there will be an economic price to pay?

I thank the noble Lord for his substantive question, which goes to the heart of an important technical point. For as long as EU-derived law remains on the UK statute book, it will be essential that there is a common understanding of what that law means. I can reassure the noble Lord that, to maximise certainty, the great repeal Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.

Given Germany’s demand for the acceptance of an ECJ role for access to the single market, will the Government rethink their blanket opposition to this, should that be the price of frictionless trade and a free trade agreement?

As the noble Baroness will understand, I cannot pre-empt the detail of the negotiations. We all understand why these must be able to proceed in an arena of privacy and confidentiality. It is wrong to conflate two distinct issues: one is the current role of the European Court of Justice in the European Union; the other is how we approach the generation of economic growth with the global opportunities in the economy post Brexit. Clearly, there are huge opportunities, and we have set out our ambitions. The Prime Minister has been clear about her ambitions in negotiations to get a full free trade agreement—and that is a very positive aspiration.

My Lords, does my noble friend agree that one thing is crystal clear: as a result of our no longer being subject to the CJEU, we will equally not be subject to the European Charter of Fundamental Rights—a document to which the party opposite said we were not bound? None the less, the ECJ took a different view, as a result of which there was a great deal of expensive litigation and confusion in the law. I hope my noble friend will confirm that that will be the end of that.

I thank my noble friend for a very helpful observation. It is the case that one implication of leaving the EU is indeed that laws will be made and enforced not in Brussels but in Westminster, Edinburgh, Cardiff and Belfast. That will bring to our legal systems throughout the United Kingdom an overdue clarity—and also, if I may say so, a sense of sovereignty and of being in control of the laws that we make.

My Lords, does the Minister recall that yesterday the Prime Minister stressed that we share liberal democratic values with our European partners? Does she accept that acceptance of the rule of law and of the importance of the rule of law is a fundamental liberal democrat value and that a small number of right-wing lawyers—Sir William Cash, Martin Howe QC and others—who think that common law cannot possibly be contaminated by Roman law have erected that as one of the red lines in our relationship with the European Union and insist that we are seen to be prepared to sacrifice the single market for that? Why do the Government not accept that the rule of law does not stop at the water’s edge?

Let me try to unpick some of the stitches in that closely woven interrogation. First of all, we all agree that the rule of law is important—there is no question about that. Respect for the rule of a law and a suitable judicial mechanism within any jurisdiction of any country is necessary to ensure that the rule of law can be interpreted and applied. I disagree with the noble Lord that in some way the CJEU and the principles of Roman law will be abruptly terminated when we leave the EU. I have made it quite clear that there is a recognition that EU law, which derives from many sources—indeed, my own Scottish legal system is derived largely from Roman law—will not stop being an important component of the body of UK law on leaving the EU. It is not that the jurisdictions of our courts are diminished; it is that we will be taking back control of law-making and law enforcement. That is a very important distinction.

My Lords, whatever the Minister says about the jurisdiction of the European Court of Justice, will she re-emphasise the Government’s position that they do not intend to withdraw from the jurisdiction of the European Court of Human Rights?

These are technical issues which of course will be reflected upon—that is absolutely clear. It is perfectly obvious to all that when you begin the mechanism of withdrawing from a very complex set of principles and jurisdictions in international law, questions will arise. But the Prime Minister has made it crystal clear that when we leave the EU, we will return sovereignty—including law-making and the enforcement of law—to the UK.