Prime minister Theresa May today vowed to end the influence of the Court of Justice of the European Union over UK law, in a much-trailed speech in which she confirmed that the UK would not remain a member of the European single market.
May confirmed that remaining in the single market would mean ‘not leaving the EU at all’ as it would have to accept continued jurisdiction of the CJEU, which she said would have a ’direct legal authority in our country’.
‘Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast,’ May said. ’And those laws will be interpreted by judges not in Luxembourg but in courts across this country.’
The legal world's reaction was cautious. Bar chairman Andrew Langdon QC said: 'Today’s speech from the prime minister has provided some much needed clarity on the government’s direction of travel over Brexit. 'Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the prime minister’s welcome reassurance that the UK will remain open to international talent.'
Charles Brasted, partner at international firm Hogan Lovells, noted that leaving the CJEU's jurisdiction would not happen overnight: ‘May has been keen to reassure businesses and others by highlighting the intention for continuity of laws and rules immediately post-Brexit and for an "implementation phase" that would deliver the full future relationship over time through a smooth and ordered process of realignment,’ he said.
He added: ’Another consequence of leaving the club is that those jurisdictional rules on recognition and enforcement embedded in the EU framework would cease to apply. However, the UK and EU will be open to agree bespoke arrangements based on their mutual interests, which may go beyond existing conventions. Clearly, the ongoing importance of access to world-leading dispute resolution in the UK will be a significant consideration.’
May's commitment to leaving the CJEU appears to contradict the government's previously signalled intention to accept aspects of CJEU authority by agreeing to sign up for the European Unified Patent Court (UPC), part of which will be based in London.
Mark Shillito, partner at City firm Herbert Smith Freehills, said while there is ’no legal reason why the UK cannot participate in the UPC despite an eventual Brexit’ but the question will be on what terms. ‘The PM signalling a desire to leave the single market is unlikely to improve the atmosphere with those with whom she will be negotiating, including on the key terms as to the UK’s continued membership of the UPCA,’ he added.
Earlier this week The Law Society listed continued access to the CJEU as a priority for England and Wales lawyers. In its submission to the Department for Exiting the European Union and the Ministry of Justice, Chancery Lane also said the UK should focus on ‘maintaining, or introducing arrangements equivalent to EU directives on establishment and professional qualifications, mutual recognition and enforcement of judgments and maintaining collaboration in policing, security and criminal justice.
In her speech May stressed she wanted Britain to create its own laws but confirmed that EU law would, at least temporarily, remain in place after Britain leaves the EU. ‘The same rules and laws will apply on the day after Brexit as they did before. And it will be for parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate,’ she said.
May also agreed with Chancery Lane’s calls for collaboration in policing, security and criminal justice saying: ‘I want our future relationship with the EU to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.’