For some, the power of the Court of Justice of the European Union (CJEU) over Westminster has been a source of discontent for years. Escaping the jurisdiction of the CJEU was one of the main priorities for the “Leave” campaign.
The CJEU has two main roles: 1) to ensure that EU countries abide by EU law, and 2) to ensure that EU law is interpreted and applied in the same way in each EU country.
Example: The Snooper’s Charter
A recent example of the CJEU’s “incursions” into parliamentary sovereignty came about after David Davis (the current Brexit secretary) challenged the legality of GCHQ’s indiscriminate interception of call records and online messages. The CJEU ruled that GCHQ’s “general and indiscriminate” retention of emails and electronic communications was illegal under EU law. At a time when terrorist attacks in Paris, Brussels, and Nice were dominating the headlines, some saw this as a victory for the protection of privacy in a democratic society. Others – including the Government – lamented a missed opportunity for a practical and dynamic regime that would help keep people safe.
The CJEU’s ruling bound the UK, and has effectively curtailed the use of those powers under the Investigatory Powers Act 2016 (aka the “Snooper’s Charter”) that are incompatible with the CJEU’s ruling.
This was all despite the fact that, just over a month prior to the CJEU’s ruling, the House of Lords had approved the final version of the Investigatory Powers Bill.
Will the CJEU feature in any future UK-EU agreement?
One of the government’s recent Brexit negotiating position papers – entitled “Enforcement and dispute resolution: a future partnership paper” – says: “In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union”.
Assuming that the UK and the EU can agree a future trade agreement, disputes are likely to arise in relation to 1) whether the UK and EU are abiding by the terms of the agreement, and 2) how the agreement is to be interpreted. Such disputes will have to be settled by some form of court (just as disputes over EU law are currently settled by the CJEU).
While it may seem obvious that this court should not be the CJEU, the EU might argue otherwise. Its position is that there are limitations, under EU law, on the extent to which the EU can be bound by a body other than the CJEU. If the EU has to be bound by a court other than the CJEU it will, like the UK at the moment, have to give up some of its legal sovereignty. The irony of such an argument would not be lost on the UK.
There will have to be a court that can settle questions arising out of any future trade agreement between the UK and EU. Whether or not that court will be the CJEU is simply another difficult, highly political point that the UK and EU will have to negotiate.