Theresa May signals major U-turn on pledge to end power of EU judges after Brexit

Theresa May and Jean-Claude Juncker
Theresa May and Jean-Claude Juncker Jack Taylor / Getty

LONDON — The UK government has confirmed Britain will no longer be subject to the “direct jurisdiction” of the European Court of Justice (ECJ) after Brexit under plans laid out in a position paper published today.

In the paper, which you can read here, the Department for Exiting the EU (DExEU) says it is “neither necessary nor appropriate” for the ECJ to police Britain’s relationship with the EU after withdrawal in March 2019.

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 also interprets EU law at the request of national courts in member states.

Prime Minister Theresa May has since succeeding David Cameron been steadfast in her insistence that European judges will have no sway over UK law once Britain departs the EU — including judges in the ECJ. “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 the notion of total judicial independence for Britain at the heart of her Brexit vision.

However, while today’s paper makes clear that there will be no “direct” jurisdiction from judges in the Luxembourg-based court, it leaves the door open for a more limited involvement from European Judges after Brexit.

The paper argues 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 has led opposition parties to accuse May of rowing back on the issue of judicial independence. This is because the recent inclusion of “direct” in the government’s language suggests a possible role for ECJ judges in resolving future disputes between Britain and the EU after Brexit, such as the terms of any future free trade agreement.

It also leaves the door open on Britain joining the EFTA court. The EFTA court is not an EU institution but often bases its decisions on ECJ rulings. The UK government could decide to sign Britain up to the EEA as an EFTA member in order to retain full access to the single market, possibly for a transitional period or even longer. If this happens, then Britain will become subservient to the EFTA court rulings.

“We welcome this sensible and long overdue climb down 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.”

Labour’s shadow Brexit Secretary, Sir Keir Starmer said: “The prime minister’s ideological insistence that there can be no future role whatsoever for the ECJ or any similar court-like body risks preventing the deal Britain needs.”

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