Three cheers to the House of Lords European Union Committee for its continuing work examining the consequences of Brexit. At the end of July, it published a report on a topic which goes to the heart of the Brexit negotiations: how to reconcile the government’s conflicting wishes to maintain the European Arrest Warrant (EAW) after Brexit with refusing at the same time to accept the jurisdiction of the Court of Justice of the European Union (CJEU). This conflict is at the heart of many Brexit wishes, which are placed on a list without any underlying context – including, I am sorry to say, the Law Society’s own list.
It is reasonable to ask why this excellent report was published only after the government announced its red-line decisions, or indeed why it was published after the referendum had taken place, not allowing a more reasoned discussion to take place on each occasion about the consequences of staying and leaving.
The report points out that the government has already taken the equivalent decision about the EAW and CJEU within the last three years. In 2014, our then home secretary and current prime minister, in the context of opting back into EU justice measures, announced to the House of Commons that accepting the jurisdiction of the CJEU in order to maintain the EAW was ‘in the national interest to keep the British public safe’.
The statistics in the report show that in 2010-2015, the UK exported around 8,000 people under the EAW to other member states, and brought back about 1,000 of the criminals that it wanted. For those who airily reply that the UK should just return to the pre-EAW arrangements (the 1957 Council of Europe Convention), the report has much to say about the shortcomings of this solution: for instance, some member states have now rescinded their legislation implementing that Convention, and others might refuse to extradite their own nationals outside the EAW. The report concludes that this route ‘would significantly slow down extradition proceedings, since it would mean going back to making routine extradition requests—as well as resolving disputes about extradition requests—through diplomatic channels’.
We are all acquainted with the rapidly rising popularity of a transitional arrangement. Everyone wants one of them now, even hardened Brexiteers. For those who believe that a transitional arrangement will solve the problems of the EAW, the report says: ‘We stress, however, that a transitional arrangement that simply extends the status quo in relation to the EAW will be difficult to secure. In leaving the EU, the UK will no longer be party to other, related EU arrangements, such as the EU Charter of Fundamental Rights, EU data protection laws, and laws on EU citizenship. We therefore remain concerned about the prospect of a “cliff-edge”, and emphasise that an operational gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk.’
I will return later to the connected nature of all EU principles and laws.
But, finally, the report notes that whatever dispute resolution mechanism is chosen for our continuing participation in the EAW, it will have to be a court, since arbitration or similar vehicles are not suitable for cases which involve an individual’s liberty. The question then is whether it makes sense to construct a special court just for the UK, replicating the functions of a CJEU but which is not the CJEU itself. Others have talked about the EFTA court, but this court’s jurisdiction is restricted at present to internal market disputes, and does not deal with the justice area. Its judges are all economic lawyers, and not criminal ones.
This same interconnected tangle underlies the Law Society’s wishlist. For instance, the Law Society, quite rightly in my view, sees the continuance of lawyers’ EU-wide practice rights as a key demand, both for UK lawyers going into the EU, and EU lawyers coming into the UK - without saying anything about a dispute resolution mechanism or how free movement of lawyers (only lawyers?) will be preserved under the UK’s future immigration regime. The EU practice rights regime is based on mutual recognition of legal systems and qualifications, itself founded on acceptance of the principles underlying the internal market, as arbitrated for decades by the CJEU. The CJEU has produced a long line of decisions interpreting the current regime. Who will decide lawyer disputes after Brexit? Can there be free movement of lawyers alone (or even just those belonging to defined professions)?
If the House of Lords report has told us anything, it is that single demands, red lines and wishlists in Brexit mean little on their own, and that there should be consideration of the whole picture of EU rights and obligations before wishlists are drawn up, for them to make sense.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council.