Brexit: Dispute Resolution and Enforcement (European Union Committee Report) - Motion to Take Note

Part of the debate – in the House of Lords at 4:15 pm on 17th October 2018.

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Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 4:15 pm, 17th October 2018

My Lords, I am the first member of the sub-committee to speak—a sub-committee very ably chaired by the noble Baroness, Lady Kennedy, who opened this debate. It is an honour to be with such congenial colleagues and very professional staff.

We began our enquiry on 21 November with a high-powered seminar—or “scoping session”—with four eminent retired judges. I recommend that all noble Lords read the transcript of that session. One of those committee members has just spoken and given us of his wisdom. The other members were the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Neuberger, and Sir Konrad Schiemann, all of whom are very senior legal figures and all of whom stressed that it was difficult to see how the courts would co-operate with EU judges and legal systems after Brexit. They were concerned about government plans to give judges a wide discretion in deciding what weight to attach to decisions of the Court of Justice of the European Union. They also feared that the implications of leaving the EU had not been thought through, could overwhelm the caseload of the Supreme Court and even endanger the independence of the British judiciary. When we met the two Ministers more recently, it was clear that these basic concerns remained largely unanswered: there was much whistling in the dark and hoping that all would turn out all right in the end.

In this debate I will offer various random reflections on our work on dispute resolution. I note what the noble Baroness said about Monsieur Barnier’s comment during the EU Committee’s Brussels visit, when he described the issue of dispute resolution as “the second most difficult point after Ireland”. Yet all the attention in the current crisis—particularly of late—is on the Irish border question, an issue in respect of which many of us consider the DUP has vastly overplayed its hand and been a sort of perverse recruiting sergeant for a united Ireland.

Again, the legal implications for us and our citizens after Brexit played no—or virtually no—role in the referendum debate, save in the platform rhetoric of “taking back our laws”, in spite of being, in the words of Michel Barnier, the second most important question. However, these legal matters, which were covered by the sub-committee and were so neglected in the referendum, impact considerably on the generality of our citizens, particularly in the area of family law, as my noble friend has said. Hard questions arise as we move beyond the rhetoric. The evidence given to us by practitioners and academics revealed the complexities involved. These complexities may well deter other countries—I think of Hungary, which, however Eurosceptic it may be, is very much in favour of retaining its membership. There is, too, a list of countries queuing to join the EU, particularly in the western Balkans.

The Government therefore appear to have very limited views on the way forward and on the appropriate forum, or forums, to resolve disputes. They have ruled out certain options, such as docking with the EFTA court, but have not indicated their favoured option. Paragraph 43 and the following paragraphs of the report provide a helpful summary of the alternatives, all of which have serious drawbacks.

The problem is, in part, that the Government appear to act on the basis that the EU is leaving the UK rather than the UK leaving the EU. They fail to appreciate that when we leave our own legal clout will be reduced because of our size, compared with the United States and the European Union—a fact that appeared to be clear from the evidence given to us. It has all the elements of a Greek tragedy. Perhaps the origin of many of the problems is the Government’s initial thick red line concerning the Court of Justice of the European Union which, as the noble Lord said, has been much demonised by Brexiteers and in our press—and even, alas, by the Prime Minister. Indeed, I think it was the noble and learned Lord, Lord Kerr, who pointed out in an earlier debate that in the debate in another place, there was much confusion between the Court of Justice of the European Union and the European Court of Human Rights at Strasbourg, which was in bad odour because of the then dispute over the Hirst case.

The White Paper of August 2017 states:

“In leaving the European Union we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union”.

That begs the question: how direct is direct?

Did the majority in the referendum seriously want a total and clean break with the European Union and all its works? That thick line has become thinner as the Government make concessions in areas such as our relationship with the European Union agencies—aviation, medicines, and so on. There have been more concessions on the European arrest warrant, which is so much in our interests, as the noble and learned Lord, Lord Hope, has indicated, and on security policy—a debate that has yet to come.

There will, no doubt, be artificial devices proposed to circumvent the wrath of the Brexiteers, and there will be many semantic sleights of hand. For example, I note that the Government have said in the White Paper that,

“the UK would respect the remit of the CJEU such that if there was a challenge to a decision made by an agency that affected the UK, this could be resolved by the CJEU”—

I underline this—

“noting that this would not involve giving the CJEU jurisdiction over the UK”.

Now you see it, now you don’t.

On the European arrest warrant, which is so important to us, it is unlikely that the more pragmatic current move of the Government will satisfy the European Union. Donald Tusk, giving a degree of help to us, I think said, “If you think you can eat your cake and keep it, I suggest a simple experiment: buy a cake, eat it and then see what you have left”. Overall, the impression given by the Government is that of seeking damage limitation, having impaled themselves initially on the position of the CJEU. As we saw in our report on consumer protection, even if it is not perfect, it best serves our national interests, and our citizens have learned to rely so much on the work of the court.

I end with a few questions. Of course, our common-law system is deeply entrenched and well respected globally, but do the Government accept the validity of the concern expressed by the four senior judges and the General Council of the Bar about the likely reduction of our legal standing overseas, set out in paragraphs 186 and 188 of our report? The Government’s response thus far, of noting various missionary visits to Kazakhstan and to China, is hardly convincing. How concerned are the Government about the potential loss of law firms and the movement of practitioners to the continent and to Ireland? Is there any evidence that is of concern to the Government on this? Do they accept that arbitration would not be appropriate in respect of many areas of UK-EU co-operation, including judicial and security co-operation? If so, what is their alternative?

The real nub question is: can the Government tell us today—can they make it any clearer—what their preferred model or models are for future dispute resolution after Brexit? Perhaps more importantly, what are the prospects of our partners in the European Union accepting that model?