Britain could remain under the direct control of the European court of justice for years after Brexit, it has emerged, and still be forced to implement the court’s rulings on vexed issues such as immigration.
The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” was revealed as the government published its latest position paper on dispute resolution before the next round of Brexit talks.While stressing that the range of options it contains are hypothetical, the government outlines only scenarios in which “direct” ECJ authority is eventually replaced by a new court or committee over which Europe maintains “indirect” control.
It has also become clear that the UK government is now open to preserving the direct authority of the ECJ throughout the interim transition period after March 2019 – during which it is expected to spend years negotiating a new trade agreement. News of the government’s evolving position has led to a growing political stormthis week, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.
European determination to use the ECJ to protect the rights of its citizens and companies after Brexit is forcing the UK into a corner and threatens to derail talks in Brussels before the British negotiator, David Davis, can switch the discussion on to trade and future relations.
Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” The UK government is, however, prepared to enter negotiations about the role of the ECJ during the interim implementation phase that it admitted last week was necessary to negotiate new customs and trade relations. It is understood this may involve maintaining direct control for a limited period.
In the long run, the government draws a distinction between enforcement mechanisms and dispute resolution once the new Brexit agreement is in effect, arguing that individual complaints can be dealt with solely by UK courts and only government disputes escalated to the new arbitration body. However, test cases involving individuals appealing against unfair treatment by, for example, UK immigration authorities may quickly escalate into a dispute over the interpretation of the whole agreement, potentially allowing the ECJ to step in on behalf of aggrieved EU citizens.
The government insists there remains a meaningful difference between direct and indirect control, although it concedes that in some of the scenarios it outlines – such as in an agreement between the EU and Moldova – there may be little practical option but to agree to rulings from the ECJ or else see the whole agreement fall apart. It argues arbitration courts and committees are standard practice for the EU though and need not involve a direct role for the ECJ over national law in the first instance.
Sir Paul Jenkins QC, a former head of the government’s legal department, said the government paper contemplated a legal solution similar to that adopted by Efta (the European Free Trade Association), which has its own non-binding court. He tweeted: “If only those of us who predicted an Eefta-like solution a year ago had put money on it.”
Other legal commentators viewed proposals for “voluntary references” to the ECJ to interpret EU rules as a significant softening of the government’s red line over judicial independence in its Brexit negotiating position. The proposals were welcomed by Gunnar Beck, a barrister and EU constitutional law expert who also works for the thinktank Policy Exchange’s Judicial Power Project, which has adopted a pro-Brexit position. He said: “Today’s paper sets out an interesting and intelligent starting vision of future cooperation between UK and EU which more closely resembles other agreements between sovereign states rather than subjection to the European legal order.”
Mathew Rea, a partner at the law firm Bryan Cave, said: “This is a clear backtrack on the government’s previous stance that the ECJ would be a red line in the Brexit negotiations and that there could be no future role whatsoever for the ECJ post-Brexit.”