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Adjudicating Treaty Rights in
post-Brexit Britain

Preserving Sovereignty and Observing Comity

By Martin Howe QC, Francis Hoar and Dr Gunnar Beckfull paper.

The EU Commission is currently demanding that the UK's future obligations regarding the rights of EU citizens resident in the UK be adjudicated by the European Court of Justice (ECJ). The Commission’s demands are incompatible with near-universal international practice under which independent states simply do not accept the binding interpretation of their treaty obligations by the courts of the other treaty party.

The nature of the case law of the ECJ, under which it frequently overrides the wording of provisions and imposes on them a meaning which in the view of the Court furthers the aims of European integration, makes the ECJ particularly unsuited to the task of impartial adjudication of bilateral treaty obligations assumed by a non-member state.

However, it is reasonable that there should be an impartial and balanced international mechanism for the resolution of any disagreements on the interpretation of the agreed treaty provisions. In establishing such a mechanism, it should be recognised that there are two distinct tasks: (1) resolving issues of interpretation of the treaty in probably numerous individual cases, and (2) resolving residual disputes at international level.

In order to deal with the first task within the UK, in a report from Lawyers for Britain  (Full Report) co-authored by Martin Howe QC, Francis Hoar and Dr Gunnar Beck proposes the establishment of an International Treaties Court, staffed by British judges and under UK law, which would act as a central point giving guidance to non-specialist courts and tribunals throughout the UK on the interpretation of the UK legislation which implements the treaty. This court could be modelled on the Competition Appeal Tribunal, a specialist court which has jurisdiction throughout the UK and is at the same judicial level as the High Court in England and Wales and Northern Ireland, and the Outer House of the Court of Session in Scotland.

It would be possible to establish such a court at a higher level in the judicial hierarchy, i.e. at a parallel level to the Courts of Appeal/Inner House, and therefore only subject to the Supreme Court; or even at a level coordinate with the Supreme Court (like the Privy Council). However, it is possible that quite large numbers of cases could arise in the early stages and a higher level court would be likely to be more expensive both in terms of legal costs for parties and judicial resources.

Within the EU27, the ECJ would automatically act as a central point of reference for interpreting the treaty rights of UK nationals when cases are referred to it from the courts of the EU27 Member States, without this needing to be included in any international agreement. This jurisdiction of the ECJ arises under a case called Demirel about the rights of Turkish workers in Germany under the EEC-Turkey Association Agreement. Under this jurisdiction, the ECJ's interpretations would be binding within the EU but would not bind the UK or its courts.

Our proposal would create a symmetrical system between the EU and the UK, where each would have a central court (the ECJ within the EU and the ITC within the UK) reaching decisions in individual cases on the interpretation of the agreed treaty provisions on the rights of EU citizens in the UK, and of UK citizens in the EU27. Under ordinary principles of international comity between courts of different countries which are interpreting common treaty provisions, it is to be expected that each court would pay respect to the decisions of the other and, although not bound to follow them, would seek to follow them if possible.

We envisage that this system would mean that the occasions when a persistent divergence would arise between the interpretation of the treaty rights by the ECJ and by the UK's ITC would be rare, or possibly even non-existent. However as a fall-back in order to deal with such divergences, we propose a bilateral international arbitral body which would sit ad hoc when required.

If the model of the ITC is established in order to guide non-specialist UK courts and tribunals in relation to the rights of EU citizens under the withdrawal agreement, it could then also readily be extended to cover other international treaty-derived rights, such as the parallel rights of EEA and Swiss citizens, the provisions of the proposed EU-UK free trade agreement, the WTO Agreements and future UK trade agreements with non-EU states insofar as their provisions are reflected in UK domestic legislation.

The ITC would not only demonstrate that the Government is taking a symbolic step to make our legal system supreme again, but would also give our judges the necessary tools to uphold and interpret the law whilst being in a relationship of cooperation as equals with the ECJ but free from its oversight.