On Monday 15 July 2018, the new Attorney-General Geoffrey Cox MP circulated a letter to Colleagues in the House of Commons which commented on the Chequers Memo published by Lawyers for Britain Chairman Martin Howe QC the day after the Chequers Cabinet meeting. Martin Howe QC has now issued another Memo containing his Response to the Attorney-General’s Letter
While he agrees with the AG that the White Paper envisages that the UK’s adherence to the so-called “common rulebooks” will be achieved by international obligations rather than by internal direct effect under UK law, he disagrees with the AG’s view that these international obligations would be “standard” or “normal”. On the contrary, they are based on the harmonisation and disputes procedures in the Association Agreements between the EU and the former Soviet republics of Ukraine, Moldova and Georgia. These contain a complex “joint reference” procedure under which the UK would be bound by ECJ decisions about UK law even though the formal ruling on a dispute would be given by an arbitral panel. He disagrees with the AG’s contention that this system “respects the principle that the court of one party cannot decide disputes between the two.” This coupled with an unbalanced obligation on UK courts to “pay due regard” to ECJ case law (with no obligation in the other direction) would make ECJ rulings in practice binding in the UK courts.
Lawyers for Britain are currently working on a fuller briefing paper on the court jurisdiction proposals in the White Paper, and are intending to publish a series of further briefing on different aspects of these proposals as soon as thes are available.