Brexit compromise on courts likely to raise judges' eyebrows

8 December 2017 6:37pm
EU UK Flags

8 December 2017. By Matthew Holehouse.

The EU and the UK have both made significant concessions over one of the most sensitive points in the Brexit negotiations: the role of the EU’s top court in overseeing the rights of EU citizens living in the UK.

The solution is inspired by a never-used, voluntary legal-reference mechanism that applies to the wider European Economic Area trade zone — plus an eight-year expiry date.

Call it the Norway setup, plus a sunset.

While this compromise allows both sides to claim victory, it amounts to an innovation that may make British and EU judges uneasy.

Norway, plus a sunset

The UK’s opening position was to demand the end of the EU Court of Justice’s jurisdiction on Brexit day.

The European Commission’s response was that the Luxembourg-based court had to retain “full jurisdiction” for the lifetime of any EU citizen living in the UK on Brexit day. This would be essential to protect peoples’ rights, and to prevent divergences emerging in the application of EU law – an important principle of European legal philosophy.

Both sides are claiming the compromise respects their red lines.

Any EU case law predating Brexit should be regarded as binding. The UK Supreme Court will “have due regard” to any EU Court of Justice judgment relating to legislation on citizens’ rights handed down after Brexit day.

Secondly, Supreme Court judges will be able to seek guidance from the Luxembourg court on EU law, “where they consider” it necessary. This possibility will elapse after eight years.

In addition, UK and EU courts will engage in a “judicial dialogue,” designed to exchange case law and ensure both systems remain in a similar orbit. The UK will maintain a right to intervene in cases before the EU Court of Justice, and the commission will be able to make representations before the UK courts.

The treatment of pre- and post- deal precedents closely mirrors the way EU case law is handled by the EFTA Court under the EEA agreement. The concept of a voluntary reference mechanism was a suggestion of the UK government, borrowed from Article 107 of the EEA Agreement, under which the courts of Norway, Liechtenstein and Iceland can send questions to the EU Court of Justice.

But combining this reference mechanism with a sunset clause, and giving the EU executive a formal right to make representations before UK courts, is an innovation which could bother some in the future.


The mechanism still needs to be fine-tuned, and it’s likely that the English judiciary will be pushing for crystal clarity on how the rules should operate.

The ambiguity that suits political dealmaking in Brussels is leaving English judiciary deeply uncomfortable, after judges faced accusations of treachery during the High Court case on triggering Article 50, the EU exit clause. Judges are therefore determined to ensure lawmakers don’t leave them exposed to charges of pro-EU judicial activism when handling sensitive cases involving immigration and welfare rules in the future.

Topping their priority list is how to handle future pieces of EU case law. The concept of “due regard” is familiar to judges, but how should it apply in this instance?

Another question they will want answered is the trigger for sending a case to Luxembourg.

The rules applicable the UK as a member of the EU are clear: where the law is unclear, a judge is obliged to make a reference.

But the voluntary mechanism in the EEA Agreement is merely ornamental, to address theoretical concerns about homogeneity, and has never been used. When should a British judge feel obliged to make a reference to the EU court, and how should it treat the answer? And how much weight should a British judge give to the testimony of an EU lawyer acting in the bloc’s interest in a future case?

Orthodoxy undermined?

Today’s announcement also raises difficult questions for the EU Court of Justice.

Through successive landmark rulings, it has established a clear principle: EU law can be applied outside the bloc’s borders, but the Luxembourg court must remain its ultimate arbiter and it can’t allow corrosive divergences in the interpretation of the law to emerge.

The eight-year sunset period adds a major caveat: politicians are able to time-limit such constitutional fundamentals.

Ultimately, the deal is an acceptance by the commission of the political facts on the ground, that the UK will be exiting the EU’s legal order, and needs a glide-path to gently extricate itself from the bloc.

Brexit Special Report