In the Brexit negotiations the EU insists on continued ECJ jurisdiction over the provisions of the withdrawal agreement concerning so-called acquired rights: the rights to free movement and non-discrimination (and many other rights) of EU citizens who at present live in the UK, and UK citizens living in the EU. It’s a negotiating position which at first sight looks pretty extravagant. By the time the withdrawal agreement enters into force the UK will have left the EU and its institutions, including the ECJ. The proposal would presumably mean that, in matters of acquired rights, UK courts would continue to make references to the ECJ; and that the full force of EU law and of the Court’s rulings would continue to apply in these matters. As has been noted this would be wholly unprecedented: no non-member state subjects itself to this kind of “direct” jurisdiction (though as I pointed out in my previous post on the ECJ and Brexit it is preferable to speak of an indirect jurisdiction). The UK government rejects the proposal, pointing out that the UK courts are perfectly capable of enforcing these acquired rights. What are we to make of these positions?
The UK government is of course right about the capacity and quality of the UK judiciary. There cannot be any doubt whatsoever that the UK legal system is robust, mature and sophisticated, that the judiciary is outstanding and completely independent from the government, and that the legal practice community matches all this excellence. But that is only half the point. The powers of the courts and tribunals are laid down in the law, and are limited. In the withdrawal agreement the UK and the EU may well agree on the continued protection of a set of acquired rights after Brexit. But will the UK judges be given the authority to enforce those rights in the same way as they are currently enforced? That system is pretty absolute, because of the direct effect of EU law and its primacy over any inconsistent UK law. For equivalent enforcement to be available the withdrawal agreement would need to be given domestic effect akin to the effect which the European Communities Act (the ECA) currently gives to EU law generally. But of course the ECA is scheduled to be withdrawn, and it is not clear at all whether the withdrawal agreement will be given this kind of full domestic legal effect. To do so would not seem to fit well with the “taking back control” slogan. But in the absence of such domestic effect, the UK courts would not be in a position to enforce the rights in the agreement where there is conflicting UK legislation or government action. And on current form the Home Office is not the greatest friend of EU citizens and their rights. Letters threatening deportation are the opposite of what EU citizens have been accustomed too, and are not really what acquired rights are about.
We should, in this respect, always bear in mind that the domestic legal effect which the ECA conferred on EU law is unique. Even the European Convention on Human Rights (ECHR), Europe’s most fundamental legal document, is not given such effect: the UK courts cannot enforce the Convention rights in the face of conflicting primary legislation (Acts of Parliament). So unless the withdrawal agreement itself lays this down and requires it, will the UK government be willing to protect EU acquired rights better than ECHR human rights?
Against this background it becomes easier to appreciate the EU’s position. There is also a conceptual point here. The EU legal system conceives of the rights conferred on citizens and businesses as including their effective enforcement. The core principles of direct effect and primacy are impregnated with this concern for effectiveness, and there is, as EU lawyers are well aware, a whole body of ECJ case law concerning effective domestic remedies for breaches of EU law. This is what makes EU law so different from other international treaties and agreements. Where there is a right, there must also be a remedy to enforce that right, in particular in front of courts and tribunals of the member states.
In fact this close connection between rights and remedies, bordering on assimilation, is something very familiar to UK law and lawyers. The UK legal system doesn’t like to look at rights in the abstract, but focuses on what the law makes enforceable.
With all this in mind, let’s return to the issue of the ECJ’s jurisdiction over acquired rights. If we are really speaking about the continued respect for the rights which EU citizens currently have in the UK, pursuant to EU law, then the enforcement of those rights must clearly be part of the conversation, just as much as the substance of those rights, and the determination of the beneficiaries. And would it be so extraordinary to allow the UK judges to refer questions of interpretation of the withdrawal agreement to the ECJ, as a continuation of what they can do at present with any questions of EU law? Clearly, the ECJ’s jurisdiction would be a much reduced one, compared to the present position. It would be a legacy jurisdiction for legacy rights, destined to extinguish with time. The UK would still be leaving the Court’s jurisdiction, but with a justified exception. Remember that there is broad consensus that acquired rights must be protected.
Of course there may be other options, such as a role for the EFTA Court. But that is for another post.