Officials contradict May over role of ECJ
Prime Minister at odds with Whitehall over ending of foreign judicial supremacy when Britain leaves the EU
Theresa May and her own officials were at odds with one another over the European Court of Justice, as the Prime Minister’s insistence that “we will be leaving the jurisdiction of the ECJ” after Brexit was contradicted by an official briefing. The Brexit department published a negotiating paper on the role of the court. Officials said the ECJ could still have supremacy during the transition period following Brexit in March 2019.
THERESA MAY has been contradicted by her own officials over the future status of the European Court of Justice after they said it could still hold sway over British courts after Brexit.
As the Brexit department published a key negotiating paper on the role of the Luxembourg-based court, the Prime Minister insisted that “when we leave the EU we will be leaving the jurisdic- tion of the ECJ”.
But in an official briefing to journalists at almost the same time, Whitehall officials said the ECJ could still have supremacy over Britain’s courts during the transition period following Brexit in March 2019.
They said an independent body that will arbitrate over post-brexit disputes between the EU and the UK must be in place before the ECJ’S jurisdiction in the UK can be ended. There was no guarantee that the arbitration service would be ready by the withdrawal date.
Labour said it amounted to an admission that Mrs May’s “red line” on ending the ECJ’S authority was “completely untenable”, while the Liberal Democrats described it as a “climbdown” by the Government.
It comes after The Daily Telegraph disclosed that Britain could be bound by future decisions of the ECJ in perpetuity, despite Brexit, if it adopts arbitration arrangements outlined in the same document. The ECJ is the highest legal authority over laws that are generated by the EU, and can overrule Britain’s Supreme Court on matters of EU law. Ending its influence was one of the key planks of the Leave campaign.
On a visit to a bus factory in Guildford, Surrey, Mrs May said: “When we leave the EU we will be leaving the jurisdiction of the ECJ. We will be able to make our own laws. It will be British judges who interpret those laws and the Supreme Court that is the ultimate arbiter of those laws.”
However, officials from the Brexit department were rather more equivocal during an official briefing for journalists. They referred to a section of the position paper that said: “The UK will work with the EU on the design of the interim period, including the arrangements for judicial supervision, enforcement and dispute resolution.”
Earlier, Dominic Raab, the justice minister, said that the UK will keep “half an eye” on the rulings of the ECJ after Brexit. He told the BBC: “Ultimately we may need some form of international arbitration. Typically widespread practice is that the UK would appoint an arbitrator, the EU an arbitrator, both sides might appoint a third. That’s the balanced way you make sure both sides have confidence in the process. “
Dominic Grieve, the pro-european former attorney general, said the ECJ will continue to have a “profound influence” after Brexit. He said it was “pie in the sky” to think Britain can escape its influence.
But Jacob Rees-mogg, the Conservative MP, said there was “no legal basis” for the ECJ to have any powers in the UK after Brexit.
The latest round of Brexit negotiations begins next week, with the questions of citizens’ rights, the future of the Irish border and a valedictory financial settlement still the focus of discussions at the EU’S inflexible insistence. Britain is anxious to move on to talk about the trade arrangements that will apply for businesses and the City in the years ahead. To that end, Whitehall has been dribbling out a succession of so-called position papers on a variety of topics to demonstrate how the Government is developing long-term plans.
The intention is to provide clarity for those who are uncertain about what the future holds. Unfortunately, they are unlikely to be any the wiser. The Government papers have not so much established a firm negotiating position based around a coherent set of goals, as set out a range of options – few of which yet represent settled policy.
The Government’s overarching aim is to leave the EU, dispense with the jurisdiction of the European Court, and create a “deep and special” partnership that will facilitate frictionless trade and continued close co-operation on a wide variety of fronts. But achieving all this may not be compatible with the desire to be an independent nation once again. Furthermore, the arrangements needed to bring this about are fiendishly complicated and hard for people to understand. Nor is it apparent what the EU side will make of it all. This is both a failure of communication and of common purpose. We are no clearer whether the Cabinet is united around an agreed direction of travel than we were a few weeks ago. The time is rapidly approaching for the Government to make firm commitments or risk losing control of events.