Still in throes of its obsession with the Court of Justice of the EU (‘CJEU”), the government yesterday published its proposals for dispute resolution after Brexit. Once the UK leaves the EU, there must be a mechanism to enforce the Withdrawal Agreement and settle disputes. The EU would prefer this to be the CJEU. Theresa May, however, has made withdrawing from the CJEU a “red line” in Brexit negotiations (despite indications the line may be blurring). Unfortunately, the government’s proposals will make the administration of EU-UK justice less transparent, less respectful of sovereignty and the rule of law, and less accessible for ordinary people.
The government’s obsession with the CJEU is entirely irrational. The Court is broadly good at what it does. Its judges are independent and expert, it is accessible to all, it makes its decisions in public and offers detailed reasoning, subjects arguments to detailed scrutiny, and boasts an effective appeals level. It also, contrary to popular myth, considers the demands of sovereignty and democracy, Naturally, it sometimes makes decisions with which people disagree. This is the nature of the game. When there are opposing parties in a case, one will likely go home disappointed. Yet, even when it disappoints, the CJEU makes decisions according to standards of justice broadly equivalent to UK courts. (The same courts that the government describes as “effective”, “independent”, and committed to the rule of law, while advocating withdrawing from the CJEU).
The most obvious difference between the CJEU and UK courts is that some people who work at the former are not UK nationals. Yet it’s difficult to see why the nationality of the person giving a judgment should matter if that judgement is made according to broadly accepted standards of justice. Indeed, it may appear that any objection is based on one’s feelings about those from other countries, rather than one’s commitment to justice.
The government’s paper offers several “precedents” for alternatives to the CJEU. only three stand any real chance of offering an equivalent impact in practice. The first is ad hoc arbitration tribunals. These are generally comprised of corporate lawyers rather than judges, make decisions in private without scrutiny, and are not bound by the decisions of previous courts. Competing tribunals have, in the past, come to opposite conclusions about the same issue. The high cost of arbitration means it is effectively restricted to the very rich.
The EU recently attempted to reform the arbitral system, requiring that tribunals be comprised of judges, and adding an appeals level to its recent treaty with Canada. Yet the appeals level in the EU’s new “investment court system” will not be able to make decisions that bind the lower tribunals, rendering it essentially pointless. It offers the appearance of rule of law principles without the inconvenience of implementing them in practice.
The “Joint Committee” system is no better. This would have disputes resolved by a committee of civil servants from the UK and EU. Once again, these committees meet in private and are inaccessible for ordinary people. Individual citizens would be entirely excluded from the process. Ironically, given the government’s apparent distaste for decisions made by people who are not British, both of these mechanisms would require a significant role for EU lawyers and civil servants. They replace a court, applying principles of justice we would recognise in the UK, with EU or corporate apparatchiks freed from all accountability and transparency.
The government’s best proposal is some form of loose association with the CJEU. This manages to offer all the disadvantages of membership of the court but with fewer benefits. By moving away from the court, the UK will no longer be able to appoint judges or Advocates General (who submit legal arguments to high levels of scrutiny), UK citizens will no longer be able to access the court, and it is not clear whether UK qualified lawyers will retain rights of audience. Yet all forms of association proposed by the government would involve the UK being bound, in some way, by the courts decisions. We will thus be committed to rules we have no say in making.
Open and transparent dispute resolution empowers individuals because it allows us to hold the powerful to account. The government’s proposals will remove a key mechanism for doing this, and replace it with something much less effective. We haven’t taken back control, in fact, the government has just moved to take it away from us.