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‘Need not…but may…’ – a red line in the sand? Clause 6 of The European Union (Withdrawal) Bill, by Rhodri Thompson QC
Since Theresa May’s Lancaster House speech in January, the UK Government has suggested a number of ‘red lines’ in its negotiating position with the EU – one of the most consistent has been to end the ‘jurisdiction’ of the CJEU in the United Kingdom. This article considers the feasibility of this approach to rulings on EU law by the CJEU, given its role as the guardian of the rule of law under the EU Treaties, independently of UK membership of the EU.
The UK withdrawal process reached a new stage with the publication of the European Union (Withdrawal) Bill on 13 July 2017. This Bill provides for the repeal of the European Communities Act 1972 on ‘exit day’ but also for the ‘retention’ of existing EU law, and specific powers to adopt secondary legislation to address ‘discrepancies’ arising from UK withdrawal from membership of the EU.
In summary, so far as the legal position in the United Kingdom is concerned (which is all that Parliament can address), the intention of the Bill is to maintain the status quo established by UK membership of the EU unless and until alternative provision is made.
The reason for this approach is that the regulation of much of the UK economy is based on EU law, including directly applicable EU ‘regulations’ whose binding effect in the UK will simply cease on ‘exit day’. Unless the effect of this legislation is preserved, the UK will plunge over a statutory ‘cliff edge’ at the end of March 2019.
The ‘jurisdiction’ of the CJEU
Given this legal context, one of the most contentious issues has proved to be continuing recognition of the CJEU as the ultimate arbiter of the validity and interpretation of EU law, the substance of which will continue to apply in the UK after March 2019.
The Government has made it a point of honour that the ‘jurisdiction’ of the CJEU over the United Kingdom must end on our ceasing to be a Member State.
On one view, this reflects a basic confusion about the EU legal order. The role of the CJEU did not change on UK accession and will not change on UK withdrawal – its role, defined by the EU Treaties independently of any issue of membership of the EU, is to uphold the rule of law, determining preliminary rulings on points of EU law, hearing appeals and, on occasion, hearing direct actions involving the EU institutions. The CJEU does not purport to exercise any general jurisdiction in or over the United Kingdom or any other Member State.
So far as issues of EU law arising within the UK are concerned, it had been clear long before UK accession that individuals and businesses could bring claims based on EU law in the national courts of the Member States, and UK national courts have determined many points of EU law ever since UK accession in 1973. Issues of EU law arising in the UK courts have only been determined by the CJEU where, in the view of the UK courts themselves, the issue of EU law is unclear and potentially determinative of the case, so that the matter should be determined by the CJEU. Even in such cases, application of the law to the facts of an individual case remains a matter for the UK courts.
Although it is inevitable that the mechanism for referring points of EU law to the CJEU will not survive UK withdrawal (see Clause 6(1)(b) of the Bill), it is far from obvious as a matter of principle why the UK Courts, when faced with an issue of EU law, would no longer ‘have regard to’ any relevant case law of the CJEU, as the court of final jurisdiction over points of EU law as laid down in the EU Treaties. Whether or not the UK is a Member State, the CJEU will retain the role allocated to it by the EU Treaties, just as the US Supreme Court is the ultimate arbiter of US federal law, the European Court of Human Rights of the ECHR, or indeed the UK Supreme Court of UK law.
Once the UK ceases to be a Member State, it is hard to see any justification for any UK Court, however senior, claiming any particular standing in the interpretation of EU law as against the CJEU. That reflects not only a conventional approach to the jurisdiction of a supreme court over the relevant system of law of which it is the supreme court, but also the established approach of the UK Courts to the obvious advantages of the CJEU in the EU legal order as against any national judge.
To take a celebrated example, in Customs and Excise v ApS Samex  1 All ER 1042, 1055, Mr. Justice Bingham (as he then was) summarised the disadvantageous position of any national judge seeking to interpret EU law:
[The Court] has a panoramic view of the Community and its institutions, a detailed knowledge of the treaties and of much subordinate legislation made under them, and an intimate familiarity with the functioning of the Community market which no national judge denied the collective experience of the Court of Justice could hope to achieve. Where questions of administrative intention and practice arise the Court of Justice can receive submissions from the Community institutions, as also where relations between the Community and non-member states are in issue. Where the interests of member states are affected they can intervene to make their views known. That is a material consideration in this case since there is some slight evidence that the practice of different member states is divergent. Where comparison falls to be made between Community texts in different languages, all texts being equally authentic, the multinational Court of Justice is equipped to carry out the task in a way which no national judge, whatever his linguistic skills, could rival. The interpretation of Community instruments involves very often not the process familiar to common lawyers of the laboriously extracting the meaning from words used but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between alternative submissions may turn not on purely legal considerations, but on a broader view of what the orderly development of the Community requires. These are matters which the Court of Justice is very much better placed to assess and determine than a national court.
Clause 6 of the Bill
However, this is not the approach taken by the Parliamentary draftsman in Clause 6 of the Bill, which tries to give legal effect to the Government’s ‘red line’. Clause 6(1)(a) and (2) state that a court or tribunal ‘is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court’ and ‘need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so’ (bold emphasis added).
The combination of Clause 6(1)(a) and (2) seems intended to suggest that the norm will be for a UK judge to ignore rulings of the CJEU even on relevant points of EU law, but the emphasised wording then puts that in doubt. No guidance is provided as to the circumstances in which a UK court or tribunal might consider it ‘appropriate’ to have regard to a ruling by the CJEU on a relevant point of EU law, but two immediately suggest themselves:
(1) Where a point of EU law is unclear to a UK Court as a matter of construction but has been the subject of an earlier ruling by the CJEU (whether or not after ‘exit day’), it would seem perverse for the UK Court to ignore that ruling, taking account of the Samex principles.
(2) Where a point of EU law is of wider application than to the UK, as might be the case, for example, where a point of EU merger law arises in respect of a pan-European transaction with significant implications for the UK economy, it would seem perverse for the UK Courts to adopt a different interpretation from the CJEU on a relevant point of EU law.
A more difficult situation might arise if the UK Courts took the view that a point of EU law had been wrongly decided by the CJEU in an earlier case, but even that possibility seems relatively unlikely – although there have been some cases where the UK Courts have been reluctant to apply a ruling of the CJEU, or where it has been politically controversial for them to do so, the application of EU law to the facts of a UK case has always been a matter for the UK Courts. It seems more likely that a UK Court in such a situation would distinguish the CJEU’s ruling on the facts rather than seeking to carve out a distinctive UK jurisprudence as to the interpretation of particular provisions of EU law.
Another possibility that might arise would be where a difficult and novel point of EU law requires determination – a UK court will no longer have the option of making a reference to the CJEU for a preliminary ruling, so it will have to do its best to resolve the issue – however, for that purpose it is hard to see how it would ever be appropriate to ignore any relevant case law of the CJEU that might exist, whether or not before ‘exit day’, that might provide assistance in resolving the disputed point of EU law.
Although the general principles of EU law will not survive UK withdrawal, the EU principle of ‘legal certainty’ may well find a domestic analogue in such circumstances – it would hardly be consistent with that principle for the UK Courts to embark on their own interpretation of EU law that was inconsistent with a ruling by the CJEU on the same legal issue.
Overall, therefore, the reassertion of the independence of the UK Courts seems likely to be more apparent than real – a red line in the sand – where a point of EU law remains decisive (or even relevant) and has been determined by the CJEU, the only sensible approach for the UK Courts will be to accept that the CJEU is and will remain the final arbiter of the validity and interpretation of EU law, as stated by the EU Treaties and their predecessors long before the UK was a Member State.
 The Bill does not (and cannot) address the fact that, in so far as the EU Treaties confer enforceable EU law rights on UK nationals and businesses outside the United Kingdom, UK nationals and businesses will lose virtually all such rights on 29 March 2019. Parliament can do nothing about this, so that these rights will simply be lost completely unless the other Member States are prepared to agree to preserve the EU law rights of UK nationals and businesses (either on a transitional or a permanent basis).
 It is true that one specific but important element in its jurisdiction is to adjudicate on infringement actions brought by the Commission against individual Member States, including the UK, but that element will simply fall away once the UK ceases to be a Member State unless the UK enters into some other international obligation subject to adjudication by the CJEU.
 This wording is to be compared to the formulation used in, for example, s. 2 of the Human Rights Act 1998, where the Court must ‘take into account’ relevant case law of the Court of Human Rights – as to the extent of such an obligation, see § 20 of the ruling of Lord Bingham in R (Ullah) v. Special Adjudicator  UKHL 26 (‘… the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law’). Under s. 3 of the 1972 Act, rulings of the CJEU are currently binding on the UK Courts on points of EU law.