LONDON – Britain on Wednesday outlined several escape routes from the “direct jurisdiction” of the European Court of Justice after Brexit, one of Prime Minister Theresa May’s key aims in talks to unstitch 40 years of EU membership.
In a government paper on the highly sensitive topic, which touches on British sovereignty, Britain set out its determination in negotiations to reach a tailor-made agreement to enforce its own laws and resolve disputes once it has left the bloc in March 2019.
The paper drew attention to several EU agreements that do not require the Luxembourg-based court’s direct jurisdiction over other countries — a clear attempt to encourage more flexibility among EU officials who are protective of the court.
May herself said breaking free of the ECJ’s jurisdiction meant that Britain would be able to make its own laws and British judges and courts would enforce them.
“We will take back control of our laws,” she told reporters in southern England, in a denial of suggestions by opposition lawmakers that she had watered down her demands by qualifying her words to say “direct” jurisdiction and opening the way to “indirect influence.”
Her words were intended to placate many pro-Brexit lawmakers in her governing Conservative Party who say the ECJ has slowly sucked power from Britain’s courts and Parliament.
But they could further harden the EU’s stance on the court. A partner from international law firm Bird & Bird said any such debate could also delay an agreement with the EU on the divorce.
“The government’s arguments about the role of the ECJ will contribute to prolonged uncertainty for businesses in relation to Brexit,” said Richard Eccles.
Many European officials see the ECJ as the ultimate arbiter of EU law and have said it should continue to guarantee the rights of EU citizens living in Britain after Brexit and oversee the Brexit agreement.
In the paper, Britain instead said its court would guarantee the rights of EU citizens or businesses in the country.
“Those rights and obligations will be enforced by the U.K. courts and ultimately by the U.K. Supreme Court,” it said.
Three priority areas
The EU said it was sticking to its stance and said it hoped to make progress on clarifying three areas as a priority — the rights of expatriates, Britain’s border with EU state Ireland and a financial settlement.
The ECJ issue has all but halted debate on guaranteeing the rights of expatriates, according to a joint status document, published last month that compared the EU and British positions.
But the question of how to resolve disputes after Brexit could cause even more difficulties.
In the paper, the government suggested it was not asking for the impossible, zeroing in on examples of where the ECJ does not have direct jurisdiction in resolving disputes.
It said though such cases were “illustrative” to help discussions with the EU.
Earlier, Dominic Raab, a pro-Leave campaigner who is now minister for courts and justice, said Britain would most likely suggest Britain and the EU should appoint arbitrators and agree a third party to deal with contentious issues post-Brexit.
“That’s one possible alternative, but I think it’s the most likely,” he told BBC Radio Four, adding that Britain would have to keep “half an eye” on the case law of the ECJ in the future.
He, like May, denied that use of the word “direct” before jurisdiction meant the government had now accepted that the court would continue to have influence over British law.
Opposition lawmakers say the debate is further exposing May’s weakness following an ill-judged election two months ago that led to her losing her party’s majority.
“The repeated reference to ending the ‘direct jurisdiction’ of the ECJ is potentially significant,” said Keir Starmer, Brexit spokesman for the opposition Labour Party.
“This appears to contradict the red line laid out … which stated there could be no future role of the ECJ and that all laws will be interpreted by judges in this country.”