Law Society of Scotland urges rule of law be put at heart of ECJ talks

The society has said that both the government and Commission must take into account the rule of law and justice as part of their Brexit negotiations, following recent publication of position papers on the Ongoing Union Judicial and Administrative Proceedings.

In its analysis of both sets of position papers, the society has said that neither has taken full account of the needs of court litigants and there was a need to adopt a principle-led approach to the reforms to ensure that people taking cases to the CJEU would not be adversely affected.

Michael Clancy, director of law reform at the Law Society of Scotland, said: “The UK government and the EU Commission have both published position papers on judicial and administrative procedures. There is however a mismatch between the two and it will be essential to ensure that any gaps are addressed. It’s our view that the negotiations on such important matters must be underpinned by the rule of law and ensure justice for litigants involved in cases going before the CJEU.

“We have concerns that there is no provision in the UK and EU position papers to deal with cases pending before the CJEU at exit day, meaning litigants or potential litigants in that situation would lack certainty about how their cases would progress.”

The Law Society has also said that even once the UK has left the EU, there will still be a need for a determination on applicable EU law in relation to some cases, although the UK will no longer have recourse to the CJEU.

Mr Clancy said: “While the numbers are not known, it is highly likely that there are cases pending in the domestic courts across the UK and other member states which may involve action in the CJEU before the UK leaves the EU. There will also be cases which have already been referred and are waiting for a decision.

“It is critically important that all current and pending cases are identified quickly, and that they, in addition to any new cases, are dealt with using adequate transitional arrangements, rather than be left to go through the CJEU system and risk not being heard by exit day.”

The Law Society of Scotland comments are available to read on its website: Position Papers on the Ongoing Union Judicial and Administrative Proceedings