Setting out their fourth Brexit position paper this week, DEXEU officials will seek to undermine claims that the European Court of Justice (ECJ) should oversee any deal between the parties, pushing instead for a “tailored” arrangement.
The Government will argue that this effectively means an end to the “direct” jurisdiction of the ECJ, allowing Britain to “take back control of its laws”,
But critics claim there are signs of a “climbdown” as ministers realise their Brexit plans cannot can be delivered “without some role for European judges”.
The influence of the ECJ on British law was a key issue during the 2016 referendum campaign, reflecting the high levels of animosity toward the courts among hardline eurosceptics.
Theresa May listed “bring[ing] an end to the jurisdiction of the European Court of Justice in Britain” as one of her early red lines in January’s Lancaster House speech, stating: “We will not have truly left the European Union if we are not in control of our own laws”.
This position has already proven to be a sticking point in negotiations over the rights of EU citizens living in the UK, with Brussels reported to want European courts to enforce the agreement.
But the document due to be published tomorrow reveals the Government will suggest such a requirement would be “unprecedented”.
Officials will claim it is neither “necessary [nor] appropriate” for the ECJ to have “direct jurisdiction” over a non-member state, adding that “there is no precedent driven by EU, UK or international law” which demands that a UK-EU agreement be enforced by the European courts.
They will instead point to a “variety of precedents for resolving disputes that may arise between the UK and the EU” which demonstrate “that it is normal for the EU to reach agreements with third countries without the ECJ having direct jurisdiction over them”.
Speaking ahead of the paper’s release, a Department for Exiting the EU (DEXEU) spokesman said it is in the interests of both the UK and the EU “that the rights and obligations agreed between us can be relied upon and enforced in appropriate ways”. “It is also in everyone’s interest that, where disputes arise... those disputes can be resolved efficiently and effectively. This paper takes the next steps as we prepare to negotiate our approach to this,” they added.
However, Open Britain supporter and Vote Leave Watch chairman Chuka Umunna suggested the Government’s emphasis on ending “direct” jurisdiction is “paving the way for some sort of climbdown”. “Despite what Leave campaigners claimed.... it appears that the Government realizes that European judges will have some say over what happens in Britain, whether we are in the Single Market or not,” he said.