Position paper

What it will mean in practice

Q What will be proposed in the Government’s position paper when it is published today? A The Government will promise to end the “direct” influence of the European Court of Justice and will suggest a series of ways in which future disputes between the EU and the UK could be settled. The word “direct” is crucial, as it leaves the door open for indirect influence in perpetuity.

Q In what way would the ECJ continue to have influence?

A One possible scenario detailed in the position paper is an independent arbitration panel that would settle disputes over trade, for example, or possibly citizens’ rights. The document will say that there could be circumstances in which the arbitration panel decides to consult the ECJ for a “binding” interpretation of a law that originated in the EU.

Q What would that mean in practice?

A An arbitration panel could be made up of a British judge, an EU judge and an independent judge from a third party country that will settle disputes between the UK and the EU. If they are considering a point of law that the judges cannot agree on, they might ask the ECJ to interpret the law, having first agreed that they will abide by the ECJ’S decision. In that way the ECJ would continue to have indirect influence over British law.

Q Is there a precedent for this?

A Yes. Moldova has just such an arbitration panel. Norway, Iceland and Liechtenstein, non-eu countries which are part of the European Free Trade Area, can also refer decisions to the ECJ if they all agree to do so.

Q Why can’t the Supreme Court just decide everything?

A In the vast majority of cases, it will – but it is standard practice in any trade agreement between two sovereign nations for an independent arbitration body to settle disputes.

Q Will this only apply to trade?

A Probably not. It could also apply to disagreements over the rights of EU citizens living in the UK, for example. The Government’s Repeal Bill will convert all EU law into UK law, meaning that a number of former EU laws that are taken on to the statute book could be subject to disputes in the future.

Q Is this a contradiction of what Theresa May has previously said?

A In the past, Mrs May has used stronger language that left little or no room for the ECJ to have any influence at all. At the Conservative Party Conference in 2016, she promised: “We are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen.”