On 23 August, the UK Government published its Brexit position paper on the enforcement of future agreements between the UK and the EU. The immediate reaction to the paper in the media focused on the potential for the Court of Justice of the European Union (“CJEU”) to maintain some “indirect” jurisdiction over the UK. In response, Theresa May quickly came out and insisted that the jurisdiction of the CJEU in the UK would come to an end with Brexit. Regardless of the future role of the CJEU, civil society must have access to justice in environmental cases in order to hold the Government to account when necessary.
The CJEU resolves disputes between EU bodies and member states’ governments and also plays a part in enforcing governments’ obligations, whether at the instigation of civil society or other EU bodies. In a possible dig at the CJEU, the paper states that “the UK views enforcement and dispute resolution as two distinct issues, and it is not necessary, or indeed common, for one body to carry out both functions in this way.” The UK Government sees enforcement as a matter for the UK courts and dispute resolution with the EU a matter for a new EU-UK body.
The Government has already accepted that a transition period will be needed after the UK leaves the EU in 2019 and the position paper does not rule out the CJEU retaining jurisdiction over the UK during that period. However, after such period, the Government appears to have no intention of giving the CJEU jurisdiction over EU-UK disputes, saying it would not be fair and neutral if that were the case. David Davis has said that the EU cannot “pick the referee” for future disputes, adding “if Manchester United played Real Madrid, you would not let Real pick the referee.” An interesting analogy given that Manchester United have only won two of their last 11 matches against Real Madrid, despite the referees being neutral.
The position is complicated by the fact that only the CJEU can make rulings on the interpretation of EU law that are binding on the EU, and any EU-UK agreement would likely include EU legal principles and interpretations. This raises the possibility that any such UK-EU dispute resolution body would need to have reference to decisions of the CJEU (hence, “indirect” jurisdiction).
In addition to resolving disputes between the EU and the UK, the CJEU also plays an important role in the EU mechanisms that enable citizens to enforce their rights. If the CJEU is to have no future role in enabling UK citizens to enforce their rights, it is important that domestic courts are given greater powers to ensure a “governance gap” does not arise on the UK leaving the EU.
At the moment, the European Commission and other EU bodies can take forward complaints made by citizens against governments and the CJEU can fine member states for non-compliance. EU institutions also perform a vital watchdog role, ensuring the UK Government complies with its obligations, including environmental, under the EU treaties. No comparable enforcement mechanism exists in the UK, and judicial review, the current legal method to challenge the Government, is far too narrow in scope and effectiveness to fill the void. The Government provides no guarantee in its position paper that adequate processes will be put in place to ensure UK citizens’ access to justice is not weakened as a result of Brexit. New domestic governance arrangements are necessary to ensure the Government delivers a green Brexit that protects environmental standards and access to justice.
Regardless of the future role of the CJEU in the UK, environmental standards should be at the heart of any EU-UK agreement, and whether it is the CJEU or a new body, the governance of such an agreement must ensure environmental standards are not lowered. Wildlife does not respect national borders so a common approach is necessary. Divergence and a lack of enforcement mechanisms would have the potential to be damaging to wildlife and civil society’s ability to protect it.
Member of Link's Legal Strategy Group
The opinions expressed in this blog are the author’s and not necessarily those of the wider Link membership.
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