UK Constitutional Law Association

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Solon Solomon: The Chequers Agreement: Brexit and the Infeasibility of Judicial and Legal Independence

The Chequers agreement reshapes the UK Brexit position. By formally throwing its lot behind a soft Brexit, Theresa May’s government has made a point. It is unclear how this stance was influenced by the House of Lords voting in favour of such a soft Brexit some months ago or by the City entrepreneurs voicing their support to such a scenario. Projecting into the future, it is equally unclear how the Chequers agreement will impact UK politics and the government’s viability.

The Chequers agreement speaks of a unique status that the UK is meant to enjoy with the EU after Brexit. On the one hand it endorses the Norway model by envisioning the state being able to impose higher tariffs on certain goods than those imposed by the Union. On the other hand, the Norway model is not completely followed. Whereas Norway belongs to the countries forming the European Free Trade Association (EFTA), subjugating all its disputes with the EU to an EFTA court which largely follows the Court of Justice of the European Union (CJEU) jurisprudence, the Chequers agreement envisions a different judicial solution with jurisdiction divided between the UK courts and the CJEU, resembling more the Swiss-EU relations model that had been proposed in the past by Switzerland for its bilateral relations with the Union, yet rejected by the latter.

The agreement claims it endorses what has been termed a ‘facilitated’ customs arrangement. It is not clear whether the EU can allow UK cases to evade CJEU jurisdiction. If the UK position resembles that of Norway, even partially, there will be no reason for it not to be put under the scrutiny of an EFTA court largely following the CJEU jurisprudential line. The same outcome would be true even if the UK, paralleling the Swiss model, managed, as mentioned in the Chequers agreement, to persuade the EU to subjugate future disputes to arbitration panels. Even if that was rendered feasible, it would be very difficult to see the arbitrators parting ways from CJEU judgements.

Moreover, to the extent that EFTA membership means also freedom of movement for persons, something that the UK would want to avoid post-Brexit, it is difficult to see how the UK-EU relationship-even if seen as a customs union- cannot be put to the scrutiny of the CJEU as is the case with the customs union between the EU and Turkey. In that sense, to the extent that the Chequers agreement is an admission that some form of judicial engagement will continue to exist with the EU institutions, it leads to one general remark about the past and the whole Brexit initiative and one observation for the future.

Brexit was about independence, first and foremost on economic terms. Leaving the European Union was portrayed by the Leave campaign as an opportunity for the country to sign free-trade deals on its own with third countries under the rules of the WTO. Countries like Australia or Colombia were mentioned as potential flourishing trade partners. The fact that these countries were thousands of miles away and the question of how this would impact on the feasibility of the trade of certain- for example agricultural- products, seemed to be bashed away. Even when it came to countries and close allies like the U.S. which due to the geographical vicinity could constitute trustable trade partners, relevant U.S. officials’ statements signalled early that the road to such a free-trade agreement would not be paved with roses.

In this sense, in this post-Brexit era we are going through, two things have been made evident: the first is that geography ultimately sets the tone, the second that in our globalized world no country- no matter how big it is- can take it on its own. Rather what is needed is the creation of alliances and group-clustering that will provide support in political matters or in the case of the UK and the EU on matters pertaining to the economy. It is not a time for lonely cowboys. On this, the UK could learn from Greece and from another referendum case. In July 2015, brought before the decision to either concede to painful EU austerity measures that the people had earlier rejected through a referendum or leave altogether the eurozone, the Greek prime minister, Alexis Tsipras, opted for the first. No matter how someone opts to see Tsipras’ decision, it denotes the cognizance that the burden of ultimately leaving altogether an established group can sometimes be unbearable. The UK government has been led to this cognizance now with the Chequers agreement.

But even beyond the question of economic independence, the Chequers agreement renders clear that as far as law is concerned, Brexit cannot equally attain independence. Not only will institutions other than the UK courts continue to have jurisdiction over British citizens, but also law other than that set by Westminster will apply. This is the case with the EU Charter of Fundamental Rights.

The question of whether the Charter will apply or not in the post-Brexit era is a highly polemic one with both supporters and opponents, and it has been seemingly settled with the EU (Withdrawal) Act 2018. The Act holds that the Charter will not apply. At the same time, the Continuity Bills enacted by the Scottish Parliament and the Welsh Assembly have enacted do ordain Scotland and Wales to continue applying the Charter. Following a grant of legislative consent to the EU Withdrawal Act by the Welsh Assembly, the Law Derived from the European Union (Wales) Act 2018 was given royal assent. However, the intention is to repeal it by executive regulation enacted under section 22 of the Act. The UK Government has objected to the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill before the UK Supreme Court. Along these lines, even if the UK Government emerges victorious from this legal battle, the Chequers agreement opens the door for an application of the Charter in UK law from the back door. Post-Chequers, the adoption even of a ‘facilitated’ customs arrangement will see the Charter becoming more relevant to the economic or social disputes courts will be called to settle as a result of such a union, even if these courts will be UK domestic ones and not European.

The reason is simply that the Chequers agreement does not exclude the application of EU rules. As noted in the agreement, due regard will be paid to EU case law in areas where the UK continues to apply a common rulebook. It can be argued that this is already the case with the EU (Withdrawal) Act 2018. Yet, there are important differences between how resort to EU law is to take place in the realms of the particular Act and how this is envisaged to be the case in the Chequers statement. In the aforementioned Act, section 6 speaks in its relevant subsections of the fact that UK Courts may but must not necessarily have regard to any CJEU judgments issued after Brexit. Resort to EU principles and the CJEU jurisprudence is to take place only in cases of retained EU law. Largely having in mind pieces of EU legislation with direct effect, like for example EU regulations, the section is meant to ensure that they continue to form part of the British legal landscape once the country leaves the Union. In that sense, section 6 comes out of necessity and in the interests of legal certainty so that a vacuum will not be created.

On the other hand, in the Chequers agreement due regard is to be paid to EU case law in areas where the UK continues to apply a common rulebook. No provision is included for the UK courts having the discretion instead of the obligation to resort to EU law and there is no repeat of the section 6 arrangement according to which the UK Supreme Court is not bound by any CJEU judgments. Whereas in the EU (Withdrawal) Act 2018 abiding to EU law is seen as a necessary evil pursued in the name of practical exigencies, in the Chequers agreement it becomes an ideological choice.

With Chequers the question becomes not whether post-Brexit, EU law will be relevant to a particular piece of legislation but to the future EU-UK relation as a whole. To the extent that such a relation will have the features of the customs union, as the Opinion of the European Economic and Social Committee on the enhancement of the EU-Turkey customs union suggests, any socio-economic issues that will erupt will be inevitably broader than labour issues already covered in the Equality Act 2006 and the Equality Act 2010 and will call for the implementation of the Charter.

Even if UK judges would like to mitigate such Charter application with citation of other human rights documents, that would be infeasible; from all the human rights documents currently applicable in the UK, only the Charter contains provisions for socio-economic rights. This is not the case either for the European Convention on Human Rights or the UK Human Rights Act 1998.  Ultimately, economic issues put aside, the Chequers agreement signifies neither legal nor judicial independence. Yet, it could not have been otherwise. This is something that the public needs to know as well as understand. Our times are not ripe for Don Quixotes or for Lucky Lukes.

Currently at King’s College London Dickson Poon School of Law with his field of research in EU law, Solon Solomon has also taught public law and human rights protection at the SOAS School of Law and the University of Reading.

(Suggested citation: S. Solomon, ‘The Chequers Agreement: Brexit and the Infeasibility of Judicial and Legal Independence’, U.K. Const. L. Blog (12th Jul. 2018) (available at https://ukconstitutionallaw.org/))

5 comments on “Solon Solomon: The Chequers Agreement: Brexit and the Infeasibility of Judicial and Legal Independence

  1. Andrew David Thorburn
    July 12, 2018

    Mmmm….good faith, good faith.

    ADT 1112 120718 In Wattstown, Rhondda.

  2. Roger
    July 12, 2018

    Speculative to be polite, suggesting red lines being crossed. That will breach promises made and trust given in return. It would never be forgiven. The Tories and all politicians would never be trusted again by many with a commensurate drop in voting, widening the gap between politicians and electorate, possibly to breaking point. In short, it suggests an unacceptable deal.

    What happened to no deal better than a bad deal? No deal.

  3. Mr B J Mann
    July 13, 2018

    “cognizance that the burden of ultimately leaving altogether an established group can sometimes be unbearable. The UK government has been led to this cognizance now with the Chequers agreement.”

    But Greece is heavily subsidised by the UK.

    Therein lies the difference.

  4. Pingback: Seven Long Years | Verfassungsblog

  5. Pingback: Brexit Highlights 9 – 15 July 2018 | Middle Temple Library Blog

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