EU law ‘binding after Brexit’
Key negotiating document sets out arrangement that could see European judges ruling on British disputes
BRITAIN will be bound by future decisions of the European Court of Justice despite Brexit if it adopts arrangements outlined by ministers in a key negotiating document today.
David Davis will publish a position paper that will state that the UK must no longer be under the “direct” jurisdiction of the ECJ [European Court of Justice] after it leaves the EU. However, The Daily Telegraph understands that the document, which sets out Britain’s negotiating position on dispute resolution, will highlight existing arrangements under which disputes are referred to the ECJ.
Tory MPS now fear that when the UK adopts EU legislation following the passing of the Great Repeal Bill, any future legal dispute over the interpretation of those laws could be referred back to Europe.
The position paper highlights a series of existing arrangements under which EU judges’ rulings are binding. The reference in the paper will raise concerns that the UK could be bound by decisions of European judges for years after Brexit.
The position paper also refers to a series of existing arrangements whereby non-eu nations such as Moldova, Norway, Iceland and Liechtenstein “voluntarily” refer disputes to the ECJ which then makes “binding interpretations”.
The Government last night insisted that the “precedents” highlighted in the paper reflect the approach of other countries and do not necessarily represent Britain’s plans.
A Government spokesman said: “We’ve always been clear that dispute resolution will require a new and unique solution and that this paper simply outlines a number of precedents.”
However, Eurosceptic Tory MPS last night questioned why the paper had put the spotlight on such arrangements at all.
They said that the approach would represent a significant retreat after Theresa May pledged last year that Brexit would see “the authority of EU law in this country ended forever”.
Bernard Jenkin, a senior Tory MP and leading member of the Leave campaign, said: “We are leaving the EU. We are entitled to expect an even-handed, bilateral relationship as in any normal relations between two sovereign states.
“The European Court of Justice should not have any role in interpreting any agreement between the EU and the UK. That should be for a genuinely bilateral and independent tribunal as for any other international agreement.
“No non-eu country will be much interested in talking to us about a freetrade agreement if we still look hobbled by our relationship to the EU.”
In the paper the Government will formally reject EU demands that the rights of the three million EU citizens living in the UK must be directly overseen by the European Court of Justice.
It will say that such a move would be
“unprecedented” and neither “necessary or appropriate”. It will instead highlight existing international agreements with the EU under which the European Court of Justice does not have “direct jurisdiction”.
The “precedents” highlighted in the paper include Moldova, which has an arbitration panel that refers disputes over EU law to the ECJ. The court then issues a “binding” interpretation.
Another arrangement highlighted by ministers is the European Free Trade Association (EFTA), which covers Iceland, Norway and Liechtenstein. They are not EU members but have access to the single market, meaning they are bound by some EU laws. Under the countries’ agreements with the EU they can decide to refer disputes to the ECJ.
The paper suggests that such an approach could help “eliminate divergence” in areas where there is a mutual desire to work closely together.
Tory Eurosceptics have raised concerns that the paper suggests that EFTA’S own independent court could provide a model for Britain after Brexit.
They have suggested the body simply “rubber-stamps” the rulings of the ECJ and would fail to deliver sovereignty when Britain leaves the EU.
David Jones, a Tory MP and former Brexit minister, said: “It’s absolutely clear that when the UK has left the EU we must leave the influence of the European Court of Justice.
“The EFTA court in reality reflects the judgments of the European Court of Justice.”
A UK government source said that Britain was entering negotiations from a “position of strength” because of its “long record” of complying with international law.
The source said: “We have long been clear that in leaving the EU we will bring an end to the direct jurisdiction of the Court of Justice of the European Union in the UK.
“It is in the interests of both the UK and the EU, and of our citizens and businesses, that the rights and obligations agreed between us can be relied upon and enforced in appropriate ways.
“It is also in everyone’s interest that, where disputes arise between the UK and the EU on the application or interpretation of these obligations, those disputes can be resolved efficiently and effectively.”