British European court cases ‘headed for limbo’
British cases before Europe’s highest court could be left in limbo if they are still pending on the day the UK finally leaves the EU, expert lawyers warned after the referendum vote in favour of Brexit.
It is generally understood that the treaties of the EU do not contain provisions extending the jurisdiction of the Court of Justice (pictured) to cover cases pertaining to a country after it has left the union.
“The UK would be likely to take the view that the jurisdiction of the ECJ ceases as from exit, even in respect of past matters which took place before exit,” Martin Howe, QC, told The Brief.
Howe, an intellectual property law specialist from 8 New Square chambers in Lincoln’s Inn, led the “Lawyers for Britain” pro-Leave group. “If the ECJ disagrees, there would be no practical way for its views to be enforced, which in any case would be circular.”
Other lawyers urged calm as the dust cloud increased after David Cameron’s resignation on Friday morning.
“It may seem trite to say it, but we remain a member of the EU until we leave,” said Nicholas Evans, a partner at Bircham Dyson Bell, a Westminster law firm. “European laws, and the British laws that are based on them, continue to apply in the UK until we reach a deal with the remaining EU states.”
Evans said it was unlikely that the UK’s next prime minister would invoke the “article 50” process, which starts the final two-year countdown on the UK’s withdrawal from the bloc, until preliminary negotiations were well advanced.
“What the government might do as a first step,” he said, “is repeal the sections of the European Communities Act 1972 that bring EU regulations directly into force in the UK, so that we don’t pick up any new European obligations between now and leaving. This would help satisfy the obvious public desire to do something soon. But even that would depend on the progress of negotiations.”
Howe disputed the assumption that there would be a requirement for MPs to vote on invoking article 50. “It is a Crown prerogative act and can be done by the government without Parliamentary authority,” he said.
Indeed, some Brexiteers have claimed that they can avoid the article 50 procedure altogether. However, Rhodri Thompson, QC, EU expert from Matrix Chambers, said: “The UK government would be bound by the article 50 procedure unless it adopts primary legislation to amend the European Communities Act 1972 or deliberately departs from it.”
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