Lawyers face uncertainty about post-Brexit dispute resolution & enforcement
Brexit secretary Dominic Raab has described a no deal exit as ‘unlikely’, in a statement to MPs on his talks with the EU’s chief negotiator.
He said the government’s 25 technical notices contained advice for businesses if there is no deal. However, he said such a scenario would bring ‘countervailing opportunities’, enabling the UK to lower tariffs and negotiate new free trade deals and allowing ‘the immediate recovery of full legislative and regulatory control, including over immigration policy’.
Sir Keir Starmer, the shadow Brexit secretary, said the government had not yet got an answer to the Northern Ireland border issue and had not put forward a credible plan.
Philip Rycroft CB, permanent secretary at the Brexit department, declined to specify when the government would decide that there was going to be no deal, stating it would be ‘somewhere between October and March’.
Giving evidence to MPs this week, he also refused to deny the government plans to install portaloos on motorways for lorry drivers stuck in traffic jams due to the reintroduction of EU border checks. He said the UK would try to make arrangements with the EU to minimise disruption in the event of no deal but could not say how that would happen.
Meanwhile, lawyers face ongoing uncertainty about post-Brexit dispute resolution and enforcement.
One proposal in the government’s Brexit White Paper, published in July, is for a Joint Committee—the composition is unknown apart from that there would be members from both sides—which could become involved where the Supreme Court and the European Court of Justice provide conflicting caselaw. In a recent LexisNexis interview, Matthew Buckle, senior associate at Norton Rose Fulbright, said the Paper was ‘short on detail’—the Joint Committee could ‘simply be a forum’ where members ‘work out an amicable resolution’ or, alternatively, it was ‘conceivable (but not yet clear) that the proposal is for the Joint Committee to provide an opinion or ruling (whether binding or not)’.
However, the Paper ‘does seem to acknowledge what will be a key point for the EU negotiators which is that only the Court of Justice can bind the EU on the interpretation of EU law,’ he said.
