- May had promised to completely remove Britain from the jurisdiction of EU courts
- However, ministers will today unveil watered-down proposals which will allow some future EU judicial involvement.
- Britain could refer cases to European courts, or accept binding arbitration from EU judges.
- EU legal expert tells Business Insider that May’s ECJ pledge was always unworkable.
LONDON — The UK government will today publish a paper outlining Theresa May’s wish to take Britain out of the jurisdiction of the European Court of Justice (ECJ) after it leaves the European Union in March 2019.
The paper, which is set to be released at midday, will repeat May’s previous insistence that it is “neither necessary nor appropriate” for the ECJ to police Britain’s post-Brexit relationship with the EU once it has left the 28-nation bloc, the BBC reports.
However, there’s a catch. While the paper will make clear that while there will be no “direct” jurisdiction from European judges, it will leave the door open for a more limited involvement from either EU courts of legal precedents.
In the paper, the Department of Exiting the EU (DExEU) will argue that in order for Britain and the EU to enjoy a “deep and special partnership” after Brexit they could make use of a “variety of precedents for resolving disputes that may arise between the UK and the EU”.
This marks a significant climbdown from May, who has long been hostile to European courts having sway over UK law.
However, Britain’s relationship with the ECJ is deep and complicated, and as the complexities of May’s bold mission for judicial independence become clearer, the prime minister could have little choice but water down her plan and accept a Brexit deal which sees European judges have influence over UK law even after Britain leaves the EU.
What is the European Court of Justice?
The ECJ, set up in 1952, is the EU’s highest court and is responsible for ensuring all EU member states and institutions comply with EU law. It is fair to say that EU law is often vague and sometimes skeletal in wording, so the ECJ interprets the law at the request of national courts of member states that are struggling to make sense of it.
The ECJ is sometimes confused with the European Court of Human Rights (ECHR) — probably because the two have similar names. However, they are completely separate bodies with different legal remits. The ECJ deals with EU law while the ECHR makes decisions based on the European Convention on Human Rights. They are also located in different countries, with the ECJ based in Luxembourg and the ECHR in Strasbourg, France.
As a result, the ECHR’s more contentious rulings relating to human rights have often been conflated with the work of the ECJ, and led to the latter having an unfavourable reputation among Eurosceptic politicians and press in Britain. One example of this was the ECHR’s decision to grant voting rights to prisoners in all 47 contracting states.
“There is a lot of misunderstanding about the ECJ and it’s true to say that the ECJ has been painted in a very bad light, which I think is unfortunate,” Catherine Barnard, a Professor of EU law at the University of Cambridge, told Business Insider this week.
What does May want to do with the ECJ?
May has promised to use Brexit as a means of cutting Britain off from the influence of judges in all European courts — including the ECJ. Her hostility towards European law dates back to her time as Home Secretary, when she was a frequent critic of the European Convention on Human Rights, and called for the treaty to be reformed.
“We will not have truly left the European Union if we are not in control of our own laws,” she declared in her Lancaster House speech in January, putting total judicial independence at the very heart of her Brexit vision.
“We’re going to talk about Britain in which we are close friends, allies and trading partners with our European neighbours. But a Britain in which we pass our own laws and govern ourselves. But a Britain in which we pass our own laws and govern ourselves,” she said at the Conservative Party conference in Birmingham in October.
Is total independence from the ECJ after Brexit possible?
Technically, yes. But, realistically speaking, very unlikely.
First of all, whether the prime minister likes it or not, many of the European bodies and programmes the UK government has expressed a preference in remaining part of after Brexit require the jurisdiction of the ECJ.
“There is the European Arrest Warrant, for example, which proved most effective in following the 7/7 attacks when one of the bombers fled to Italy but was back in the UK within a week under the Warrant. We can only stay party to and part of the European Arrest Warrant if we are subject to ECJ jurisdiction,” Barnard, who is also a senior fellow at the UK in a Changing Europe research group, told BI.
The European Medicines Agency — which Health Secretary Jeremy Hunt has hinted he would prefer Britain remain part of — also requires members to accept ECJ jurisdiction. As does the EU’s Open Skies agreement, which allows airlines to fly to and from any point in the EU and any point in the US.
In other words, if UK government really does want to enjoy a “deep and special partnership” with the EU after Brexit, then it will likely have to prepared to row back on its original red line to reject all ECJ jurisdiction.
“The closer to the UK stays to the EU the harder it is to say that the ECJ jurisdiction should not apply,” said Barnard.
So what could happen instead?
In recent weeks DExEU Secretary David Davis has used a significant shift in language, suggesting Britain will be free from “direct” ECJ jurisdiction after it leaves the EU in March 2019. The use of direct is crucial, as it suggests although the UK government is not willing to accept total ECJ jurisdiction, it is open to a half in-half out style arrangement.
This could be where the EFTA comes in.
What’s the EFTA court?
OK. Here’s where it gets a tiny bit complex.
The EFTA court handles Iceland, Liechtenstein and Norway’s dealings with the EU’s single market. These three countries are not EU member states, but enjoy full access to the EU’s single market as members of the European Economic Area (EEA) — an arrangement often dubbed the “Norway” model. They are all members of the European Free Trade Association (EFTA).
What’s this got to do with Britain? Well, one option on the table, for a Brexit transition deal and possibly even beyond, is Britain joining EFTA, which it quit in 1972, and then signing up to the EEA as an EFTA state. This, in theory at least, would allow Britain to retain full single market access — something staunch Europhiles are urging May to pursue.
Now, as an EFTA state within the EEA, Britain would not be subject to the direct jurisdiction from the ECJ. However, it would be subservient to the EFTA court, which, crucially, often bases its rulings on decisions made by the ECJ.
Brexiteers wouldn’t like this, would they?
Many will not. After all the EFTA court is still a group of “foreign judges”making rulings that will impact UK domestic law. This would probably be a tough-sell for May.
The EFTA court option is already causing a stir among Eurosceptics on the Tory backbenches.
“One of the rulings of the EFTA court is that it wishes to be as close as possible to the European Court of Justice because it believes that there should be homogeneity. It doesn’t diverge from the European Court of Justice in normal circumstances,” Brexiteer MP Jacob Rees-Mogg said.
John Redwood MP echoed his colleague, saying: “I don’t see the need for it. As far as I’m concerned once we leave the European Union we leave the jurisdiction of the court. More than 160 nations have trade deals with the EU without any special arrangements.”
However, it’s a pill they may have to swallow. Speaking on the Today programme, Justice minister and leading Brexiteer Dominic Raab pointedly distanced the government from “all this jingoistic stuff about foreign judges and foreign courts”. He then suggested that the government may accept some new for of “arbitration” in which both British and European lawyers settle future disputes.
The Telegraph today suggests that this could ultimately involve Britain “voluntarily” referring cases to the ECJ, or at the very least relying on ECJ case law. This would be some distance from May’s previous repeated insistence that Britain would completely separate itself from European courts.
So the government in a bit of a predicament?
May’s promise to make Britain a “fully independent, sovereign country” was well-received by Brexiteers in her party but whether it can be achieved in the context of the ECJ remains to be seen. “It’s unfortunate that the ECJ has been given such a bad reputation and identified as a red line because it’s made negotiations a lot more difficult,” Barnard told BI.
“We welcome this sensible and long overdue climbdown by the Prime Minister. It shows Theresa May’s red lines are becoming more blurred by the day,” Liberal Democrat leader Sir Vince Cable said.
“The government seems to have belatedly accepted it won’t be possible to end the EU court’s influence in the UK without damaging our free trade and security cooperation with Europe.”
Some pro-Brexit MPs are also rowing back. Speaking to the BBC this morning, Raab said: “We’re leaving the EU and that will mean leaving the jurisdiction of the European Court of Justice.”
However, asked whether the recent inclusion of “direct” means there could be some ECJ jurisdiction, the MP failed to say this wouldn’t be case, saying the UK will keep “half an eye on EU law.”
What exactly keeping “half an eye” on EU law actually means is a question that is likely to cause the prime minister a huge amount of grief within her party. However, with the success or failure of Brexit negotiations likely to hang on this very issue, May’s Brexiteer MPs may have little choice but to turn at least half a blind eye to whatever compromise solution she comes up with.
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