EU law through back door is not an option

Abasic requirement of Brexit, if it is to mean anything, is that the UK takes back power over its own laws. This means that, after departure in March 2019, the Court of Justice of the European Union (CJEU) will no longer have jurisdiction in the UK. That must be a red line for the Government as it negotiates the terms of Britain’s exit.

However, this is complicated. There will be ongoing legal issues over the rights of EU citizens resident in Britain and the UK’S obligations under international agreements. Working out arrangements for legal cooperation and mutual recognition of judicial decisions will be one of the trickiest areas to negotiate.

Existing international conventions might suffice in some areas, but the Government would prefer to retain the current arrangements based on mutual trust between legal systems within the EU. A position paper published yesterday states that “the UK will seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework”. Clarity and certainty is what traders and investors crave if they are to plan their post-brexit future.

But what happens when there is a dispute over the interpretation of EU law that has been incorporated into UK jurisprudence? Who decides what is correct? In another position paper today, the Government suggests as one option that in such cases reference should be made to the CJEU, which would then make a binding determination of the meaning of substantive EU law.

This is beginning to look suspiciously like a backdoor role for the European Court which could, in theory, continue long after Britain has left the EU and any transition arrangement has ended. Furthermore, the EU side wants the rights of EU citizens living in Britain to be ultimately a matter for European law, a position that no independent country can possibly accept and for which there is no precedent. It is also unnecessary, given the UK’S well-established commitment to the rule of law and its internationally respected legal system. Moreover, the benign intentions of Britain towards EU citizens living here have been made clear and those who want to stay must be subject to UK, not EU, law.

On one thing the Government has so far been clear – that there will be no residual role for the European Court. It must stick to that position.