BREXIT: 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

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