There have been the usual Brexit jolts over the last week, but for lawyers the most significant were the two separate references to the Court of Justice of the European Union (CJEU) on Brexit-related matters. Despite previous failed attempts, and the government’s extreme reluctance, the CJEU is going to give its opinion at last on Brexit consequences.
The first, and more far-reaching, case arose in the Netherlands, where a group of British expats managed to persuade a court to refer two questions to the CJEU. The questions go to the heart of what will happen to us after 2019: first, whether Brexit means that British nationals will automatically lose their EU citizenship and its accompanying rights – and second, if not, what conditions or limitations will apply to those rights post-Brexit.
The outcome could be crucial for the continuing practice rights of lawyers. Before the EU-UK withdrawal agreement was published, there was a heated debate within the European legal profession as to the scope of citizens’ rights. Did the acquired rights of citizens cover the full panoply of rights outlined in the EU lawyers’ directives, and therefore should they be guaranteed in the withdrawal agreement?
It is clear that both sides, EU and UK, finally agreed that at least some are covered. In the documents published on the announcement of ‘sufficient progress’ in December 2017, both sides put professional qualifications within their definition of citizens’ rights, but they differed considerably on scope, practice under home title being one of the chief differences (the EU said it was outside the scope of its mandate for this phase of the negotiations). The CJEU, when it makes its decision in this case, could for once and all tell us exactly what is included in acquired rights, and in particular whether all the rights granted in specific sectoral directives which grant freedom to move and work should be taken as acquired rights post-Brexit.
The second reference to the CJEU is just as interesting, because – although much narrower in extent - it touches on one of the most sensitive aspects of government policy, the continuation of criminal justice cooperation. It was reported at the weekend, for instance, that the prime minister will announce in her speech this coming weekend that we will remain part of the European arrest warrant (EAW).
But the Irish Supreme Court has refused to extradite to the UK an EU citizen, requested under an EAW, on the grounds that the UK will have left the EU by the time he finishes his prison sentence. The requested person had argued that his rights as an EU citizen, surrendered to another EU jurisdiction on the basis of an EAW, would no longer be capable of being enforced post-Brexit under European law. The matter has been referred to the CJEU for decision.
There are apparently 20 further pending Irish extradition cases to the UK. The Irish chief justice foresaw that the principle in this case might have impact on other areas of law, too. He will invite the CJEU to deal with the matter expeditiously.
The EAW in general raises interesting Brexit questions. Although the non-extradition of those requested by the UK will be a nuisance, it is as nothing compared to what a nuisance the UK’s withdrawal will be to the rest of the EU. The European Parliament’s committee on civil liberties, justice and home affairs has recently published a report on ‘The implications of the United Kingdom’s withdrawal from the European Union for the Area of Freedom, Security and Justice’. It cites the well-known statistics on EAW requests to and from the UK. From 2012-2015, the UK made 1,424 requests for extradition, but the EU 27 member states collectively made 48,766 requests to the UK. The committee concludes that, unless some agreement is made regarding the EAW post-Brexit, ‘a significant cost increase to EU27 member states in extradition requests to and from the UK, with potentially significant delays in bringing suspects to justice’.
There are other EAW complications. Our requests may be low in number, but they are presumably important to us. The government has made much of how the Charter of Fundamental Rights will no longer apply to the UK post-Brexit, but there is a decision of the CJEU – Petruhhin, Case C‑182/15 – which makes it clear that, when deciding whether to extradite an EU national to a third party state, the provisions of the charter apply. So we will continue to be judged against its provisions, whether we are party to it or not.
And what about the other consequences: of data being transferred only under the EU umbrella, and all conflicts being resolved by the CJEU?
I suspect more references to the CJEU on Brexit issues will arise. Their impact on the negotiations could be significant.