Britain outlined on Wednesday (23 August) several escape routes from the “direct jurisdiction” of the European Court of Justice after Brexit, one of Prime Minister Theresa May’s key aims in talks to unstitch 40 years of EU membership.
In a government paper on the highly-sensitive topic which touches British sovereignty, Britain set out its determination in negotiations to reach a tailor-made agreement to enforce its own laws and resolve disputes once it has left the bloc in March 2019.
The paper drew attention to several EU agreements which do not require the Luxembourg-based court’s direct jurisdiction over other countries – a clear attempt to encourage more flexibility among EU officials who are protective of the court.
May herself said breaking free of the ECJ’s jurisdiction meant that Britain would be able to make its own laws and British judges and courts would enforce them.
“We will take back control of our laws,” she told reporters in southern England.
Her words are intended to placate many pro-Brexit lawmakers in her governing Conservative Party who say the ECJ has slowly sucked power from Britain’s courts and parliament.
But they could further harden the EU’s stance on the court.
Many European officials see it as the ultimate arbiter of EU law and have said it should continue to guarantee the rights of EU citizens living in Britain after Brexit and oversee the Brexit agreement.
In the paper, Britain instead said its court would guarantee the rights of EU citizens or businesses in the country. “Those rights and obligations will be enforced by the UK courts and ultimately by the UK Supreme Court,” it said.
The third round of UK-EU negotiations will take place in Brussels next week.
It is no surprise that the ECJ has become a major hurdle to an agreement on guaranteeing the rights of expatriates, one of the easier aspects of the Brexit talks which, more than a year since Britain voted to leave the EU, have moved slowly.
A joint status document, published last month, comparing the EU and British positions shows that talks on those rights have come unstuck because of a dispute over the role of the ECJ.
Using a traffic light system to gauge progress in various areas, the role of the ECJ is beyond the red showing disagreement and is referred “for discussion in the governance group”.
But the question of how to resolve disputes after Brexit could cause even more difficulties.
In the paper, the government suggested it was not asking for the impossible, zeroing in on examples of where the ECJ does not have direct jurisdiction in resolving disputes.
It said though such cases were “illustrative” to help discussions with the EU.
Earlier, Dominic Raab, a pro-Leave campaigner who is now minister for courts and justice, said Britain would most likely suggest Britain and the EU should appoint arbitrators and agree a third party to deal with contentious issues post-Brexit.
“That’s one possible alternative, but I think it’s the most likely,” he told BBC Radio Four, adding that Britain would have to keep “half an eye” on the case law of the ECJ in the future.
Unlocking talks on future EU-UK ties
The “future partnership paper” on judicial and political dispute resolution is part of Britain’s strategy to try to force the EU into discussing future ties alongside discussion of the divorce.
But the EU says it must see “sufficient progress” in the first stage in talks – on the rights of expatriates, Britain’s border with EU member Ireland and a financial settlement – before moving on.
“We need to talk about the future very soon,” another British source said, echoing comments from all sides that the “clock is ticking”.
Meanwhile, the Brexit department’s focus on the ECJ’s “direct jurisdiction” over Britain has led opposition parties to suggest the government is softening its stance and could put forward proposals allowing the EU court to have some future influence in UK courts.
Pro-EU opposition Labour MP Chuka Umunna said the “sudden shifting of the goalposts to ending only the ‘direct’ jurisdiction of the ECJ suggests they are paving the way for some sort of climbdown.”
Vince Cable, leader of the pro-EU Liberal Democrats, said the proposals were a “sensible and long overdue climbdown”.
“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,” he said in a statement.
Raab, like May, denied that use of the word “direct” before jurisdiction meant the government had now accepted that the court would continue to have influence over British law