The Bar Council has said the government should clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law only ‘scratches the surface’ of the problem.
In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.
For example, the bar council said the white paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’
Although admitting that this is a ‘rather technical point’ the bar body said whatever provision the bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.
It added that there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.
The council said it is preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the government’s thinking on matters.
The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.
Safeguards proposed include that powers to enact delegated legislation will be used only 'so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and 'to implement the result of the UK’s negotiations with the EU’.
Finally, the Bar Council also stressed the need to take note of the ‘great deal’ of environmental law that is derived from the EU.
‘It is not clear how it intends to treat future changes to EU environmental law beyond the point of exit from the EU,’ the council said.
It added: ‘To that end, we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’