Supreme Court to determine first CJEU reference post Brexit referendum


Robin Allen QC and Rachel Crasnow QC are in the Supreme Court today [Thursday 7 July] representing Dermod O’Brien QC, the part-time judge whom they have acted for since 2008 and for whom they obtained, for the very first time, a judicial pension although he was always only part-time.  [See O’Brien v MOJ [2013] ICR 499]

A point has arisen concerning if judicial work carried out before the PTWR came into force can be relied upon in calculating his [and thousands of other part-time judges’] pension. This argument over does a worker acquire a vested right to a future pension payment at the time of service or do pension rights crystallise only when the worker retires is also relevant to the point in time when many judges put their claims in  – ie the primary limitation period. This concerns the case of Miller v MOJ ie does discrimination occurs at retirement or at an earlier point.

The Cloisters’ barristers are seeking a reference to the CJEU regarding the operation of an EU law principle called the future effects principle and also the relevance, if any, of the Barber Protocol. One issue which may arise today is the question of references post referendum.

Martin Howe QC has said that “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.”

O’Brien’s Counsel disagree – saying the CJEU will be seized of all matters before it as at the time the event in question (here the discrimination ending in 2005) took place.

What the right answer is remains to be seen. But it must be right that until “exit” takes place, at some point at least two years after Article 50 is triggered, the UK is bound by all existing EU laws and treaty obligations and the CJEU remains in the same position as it has pre Brexit regarding the UK. At what stage the 1972 European Communities Act may be rescinded is unclear but in our view it would not be before 2 years following the Article 50 trigger Mr O’Brien’s representatives hope that his long-running case will be completely over by that point but they did not imagine that the litigation would last as long as it has. Post the repeal of the EC Act, novel questions would arise about enforcing CJEU judgments in the UK.

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