U.K. Accepts ‘Close’ ECJ Relationship in Brexit Climbdown

Updated on
  • Government accepts EU court will continue to apply to Britain
  • But ministers rule out direct ECJ oversight of citizen rights

Falconer on U.K. Courts After Brexit

Theresa May’s government will accept a “close cooperative relationship” with the European Court of Justice, in which both past and future rulings would still apply to the U.K. in a concession aimed at accelerating Brexit talks. 

This is a retreat from the prime minister’s pre-election rhetoric about ending the court’s jurisdiction over Britain. A position paper published Wednesday suggested the government was open to monitoring EU case law, abiding by past ECJ rulings, taking future ones into account, and even referring decisions to it.

“There are a number of ways in which it will be possible to deal with dispute resolution in the future,” May told television broadcasters. “The purpose of our paper is to show that we have thought about what that might be; we’ll now obviously go into negotiations with the European Commission to discuss what is the best way forward.”

While May has said she doesn’t want to copy any other country’s relationship with the EU, the latest policy outlines point to the pursuit of model like the European Free Trade Association that has separate tribunal resolving disputes.

How to Compromise

What’s become apparent is that while on the surface the U.K. wants to give the impression it’s not caving -- May is adamant that Britain is taking back control -- the fine print shows there is now wiggle room ahead of a new round of talks with time of the essence.

“Any agreement the EU enters into with the U.K. will ultimately have to be judged by the ECJ,” said Marta Requejo Isidro, a senior research fellow at the Luxembourg-based Max Planck Institute for International, European and Regulatory Procedural Law. “So whatever the U.K. does to avoid the ECJ while keeping access to the market is bound to fail.”

European Commission spokesman Alexander Winterstein told reporters in Brussels that “our own position is very clear, is very transparent, and is unchanged.” In other words, the agreed priorities to tackle in the talks remain the U.K.’s financial obligations, citizens’ rights and the Irish border.

The U.K.’s main opposition party, Labour, took the view that the government “was beginning to acknowledge that Theresa May’s so-called redline on ECJ jurisdiction is completely untenable” and accused her of “repeating empty rhetoric.”

Calling the Shots

What ultimately matters is how the EU responds. It has already said it wants the ECJ to have "full jurisdiction" over the rights of its citizen living in Britain, something the U.K. continues to balk at.

EU chief negotiator Michel Barnier tweeted on Monday that “enforcement and dispute settlement mechanisms respecting EU legal order are essential.”

If the EU holds out it could delay pivoting from discussing the terms of separation to crafting the trade deal Britain wants. The U.K. is hoping the wave of position papers it’s published this month will help speed the negotiations that resume next week in Brussels.

Wednesday’s paper directly evoked EFTA, whose court resolves disputes that cover Norway, Iceland and Liechtenstein. National courts can refer questions to it, but unlike the top court its judgments aren’t binding. Even so, some argue it is merely a rubber stamp for rulings handed down by the larger court.

The government paper ruled out the idea of the ECJ having “direct jurisdiction” over the U.K. In the area of enforcing the rights of EU citizens after Brexit, where Brussels has said the ECJ should have "full jurisdiction,” the paper said British courts were up to the job. 

“The U.K.’s commitment to the rule of law has been built over centuries, and reaffirmed time and again by effective, independent courts,” the paper said. “Anyone seeking redress within the U.K.’s legal systems will know they will be judged by clear rules.”

‘Is Fine!’

However, in what risks upsetting euroskeptics in May’s Conservative Party, the paper went on to acknowledge that EU law will have a large effect on Britain long after Brexit.

Early comments suggested they were content with the proposals. “Govt’s policy is fine!” one Conservative member of Parliament, Bernard Jenkin, said on Twitter, describing it as a “normal nation-2-nation dispute resolution mechanism.”

“It is best to have these international agreements policed under international law,” said pro-Brexit Tory John Redwood on the BBC. “We cannot have a court of one country policing the decisions of another country.”

Failure to find an agreement would erode the time available for the U.K. and the EU to craft a long-term trade accord -- and that is where the bloc holds the upper hand. A prolonged fight over the law would also complicate Britain’s ability to win the post-Brexit transition it now admits it needs and wants.

“The EU view the ECJ and access to the single market as an indivisible package,” said Rob Aird, corporate partner at Ashurst, a London-based law firm. “What this proposal likely means is that any resulting trade agreement with the EU will be less free and frictionless than the single market access currently enjoyed by the U.K.”

— With assistance by Ian Wishart, Simon Kennedy, Svenja O'Donnell, and Stephanie Bodoni

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