Without judicial oversight any "intractable" disagreements with the EU will be "potentially insoluble", and individuals and businesses would also be unable to protect and enforce their rights.
The Government has made clear its wish that when the United Kingdom leaves the European Union, the "direct jurisdiction" in the UK of the Court of Justice of the European Union (CJEU) will end. The Committee has looked at:
- the enforcement of any withdrawal agreement concluded under Article 50;
- oversight of the proposed transition period; and
- enforcement of any agreement that is reached on the future relationship between the EU and the UK.
The EU insists that the CJEU should oversee the withdrawal agreement, but the Committee expresses concern and says that oversight should not be left to a Court "associated with one of the parties". The UK Government, in contrast, has proposed only a political mechanism, but the Committee is concerned any "intractable disputes" would be "potentially insoluble" under the Government's proposals. The Committee calls on both sides to bring forward "pragmatic proposals" to resolve the impasse.
During transition, the Government has accepted that continued jurisdiction for the CJEU is inevitable. The Committee argues that it should be "only for a reasonable, time-limited period", and that there should be a "longstop" for any claims arising during transition.
In the longer term, the Committee says that "there will be no one-size-fits-all mechanism" for enforcement. The future relationship will be closer in some areas than others—and where it is particularly close, for instance if the UK wants to stay part of EU agencies or remain part of the European Arrest Warrant, then it will have no option but to "respect the remit" of the CJEU.
There is also work to be done on justice cooperation in civil, family and criminal law and the Committee says that it has “grave concerns” about these issues.
Chairman of the Committee Baroness Kennedy of the Shaws said:
"The Government claimed that continuing the jurisdiction of the Court of Justice was a 'red line'. It now appears to be more of a blurred pink line: if we don't want the CJEU, we'll need to invent something that looks very much like it. There needs to be some sort of judicial, or quasi-judicial, oversight of all the UK-EU agreements.
"In fact, even the Government now accepts that there may have to be some give and take: if the UK wants to stay in key EU agencies, such as on medicines or aviation, it will have to "respect the remit" of the CJEU.
"We are really worried now about the lack of time. This is difficult stuff, and unless both sides show real flexibility in the coming months, not only could the rights of businesses and individuals be threatened, but the whole Brexit withdrawal agreement could end up being potentially unenforceable.
"What's absolutely vital is that after Brexit we continue to give ordinary citizens access to justice. For example, if you're a parent living in the UK, and you want to enforce the payment of maintenance by an ex-partner living in the EU, you want access to quick, effective justice."