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Free AccessBREXIT: Top Judge, EU Unions Warn On Need For UK Law Clarity
--UK Supreme Court Head Says Judges Need Clarity
--ETUC Tells MNI Not "Credible" To Have Only Own Courts
By Tara Oakes
BRUSSELS (MNI) - The UK's red line negotiating principle on the European
Court of Justice jurisdiction came under strain Tuesday as Supreme Court
president Lord Neuberger said judges needed more guidance.
In an interview with the BBC, Neuberger said that more clarity was required
for the courts to work -- or risk judges being blamed for having to fill in
parliament's gaps.
"Parliament should be very clear in telling the judges what to do. Because
if it doesn't express clearly what the judges should do about decisions of the
ECJ, then the judges will simply have to do their best. But to blame the judges
for, as it were, making the law when parliament's failed to do so would be
unfair," he added.
The issue emerged as a sticking point between Britain and the EU in the
last round of Brexit talks. The UK's position paper on citizens' rights -- the
only one it has presented so far -- is clear that once they have left the bloc,
the ECJ "will not have jurisdiction in the UK".
EU negotiators refuse to accept this in the key issue of citizens' rights
and a joint technical note published by both sides in July said it would be
discussed in the governance group.
UK COURTS UNCERTAINTY
Existing case law is set to be retained as law by the UK's withdrawal bill,
but it will be left up to UK courts to interpret and, if desired, depart from
it.
But after Brexit day, set for the end of March 2019, future case law and
judgements handed down by the ECJ will not be binding on UK courts. For
Neuberger, who is stepping down next month, the issue is the clarity needed for
judges on whether or not to consider ECJ decisions in future.
"If the United Kingdom parliament says we should take into account
decisions of the ECJ, we will do so; if it says we shouldn't, then we won't," he
said.
Former Attorney General Dominic Grieve also told the BBC he agreed that
there was "uncertainty" in the current government stance -- for whom he is an
MP.
"The legislation for withdrawing us from the EU, which we're about to start
from September, leaves very unclear what the relationship subsequently between
ECJ decisions and jurisprudence and our own courts should be," Grieve said.
WORKERS
The European Trade Unions Congress (ETUC) told MNI in an interview that
without ECJ jurisdiction, it was difficult to envisage how to hold member states
to account for the high level principles agreed on by negotiators.
"You can't just trust a member state to say: 'We'll live up to it'. That's
not a credible position," Confederal Secretary Esther Lynch told MNI.
Lynch said that the ECJ and the threat of infringement proceedings had been
used to make governments uphold positions on issues such as gender pay when
member states had been taken to court by unions. Without its jurisdiction she
said that the UK would, in effect, be holding itself to account.
"It's not a serious negotiating position to say: 'We'll have our own courts
and only our own courts, and only our own courts will decide whether we're doing
the right thing or not'," she added.
The group have already echoed the UK's national TUC in saying that a
no-deal Brexit would be "devastating for jobs" and called for a transition
period as close as possible to the current status quo, including ECJ
jurisdiction.
For Lynch, it was "too soon to say" whether an EFTA-style tribunal would
work in the aftermath, but said there had to be a strong legal entity with the
power to enact infringement proceedings.
"It has to be a court but more than that - there has to be this threat of
an infringement proceeding where the outcome is more than a strongly-worded
letter, it has to be, for example, fines," she said.
Having two sets of courts with jurisdiction over one area would be "highly
problematic", she added.
Pro-Brexit MP Owen Paterson called on Tuesday for a "UK judicial
arrangement" staffed by British lawyers "who could give advice and
interpretation of our new treaty to courts with less specialist knowledge".
DISCRIMINATION
For ETUC, who represent workers 39 in countries, legal issues are already
emerging as they claim that Brexit-based discrimination is starting to hit
workers.
The group met with the EU's Chief Negotiator Michel Barnier after the most
recent round of Brexit negotiations, where they called for more legislative
measures to back up the high-level negotiating principles.
"[P]eople are already being discriminated against in terms of promotions.
If they're opening up a new office they're saying: 'We don't know what's going
to happen to you in consequence of Brexit'," Lynch told MNI.
"The on-the-ground reality of people is that they're experiencing and
feeling discrimination, but we have this high-level principle that won't
happen," she added. ETUC are set to have a litigation group meeting in September
to address members' growing concerns on how to legally tackle the discrimination
reported.
The next round of Article 50 talks are set to kick off the week beginning
August 28, in Brussels, when it will be seen how far either side will be able to
compromise on the legal backbone of post-Brexit Britain.
--MNI Brussels Bureau; +44 203-865-3851; email: tara.oakes@marketnews.com
--MNI London Bureau; tel: +44 203-586-2225; email: les.commons@marketnews.com
[TOPICS: M$B$$$,M$E$$$,MC$$$$,MI$$$$,MGB$$$]
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Why MNI
MNI is the leading provider
of intelligence and analysis on the Global Fixed Income, Foreign Exchange and Energy markets. We use an innovative combination of real-time analysis, deep fundamental research and journalism to provide unique and actionable insights for traders and investors. Our "All signal, no noise" approach drives an intelligence service that is succinct and timely, which is highly regarded by our time constrained client base.Our Head Office is in London with offices in Chicago, Washington and Beijing, as well as an on the ground presence in other major financial centres across the world.