Britain made clear yesterday that it was happy to recognise the legitimacy of EU law, but who will adjudicate on any disputes that arise between it and the bloc post-Brexit? There is a lot of potential for legal rows over the terms of Britain’s exit, and its free trade deal, with the remaining 27 EU members. As a member of the bloc, Britain has had to leave the final say to the European Court of Justice. But this morning, Theresa May said that it would be “leaving the [ECJ’s] jurisdiction” on leaving the Union. That won’t necessarily happen from March 2019, as a paper out today from the Brexit department makes clear that officials are happy for the ECJ to reign supreme over British courts during any transition period – which could last for several years.
After the transition, British officials envisage an end to the ECJ’s “direct” jurisdiction. They want to replace it with an independent body to arbitrate disputes with the EU, that might refer any matters – voluntarily – to the ECJ for a verdict. Justice minister Dominic Raab admitted that Brexit Britain would still keep “half an eye” on the ECJ’s rulings. The paper doesn’t specify what form its preferred third-party arbitrator should take, but it cites “a number” of previous examples – ranging from the WTO to Efta – to make clear that the EU shouldn’t expect to have its own Court have the last word. The British might eye Efta as their answer (an option I’m referring to as ” Befta“), but Eurosceptics and Europeans alike have warned that the existing Efta court wouldn’t protect Britain from ECJ meddling. The Court, Martin Howe QC, writes “slavishly follows” ECJ judgements, leaving it effectively a “ vassal court which transmits [them] downwards to the EEA countries”. If Efta is to work, legal expert Gunnar Beck warns, “important modifications” would be needed “before it too could be called truly independent”.
British officials will take Efta’s flaws in their stride, as they insist that they want something “new and unique” in order to ensure Britain is no longer under the “direct” jurisdiction of the ECJ. The main problem with that, our Europe editor Peter Foster finds, is that the this position paper is one of the latest coming from Whitehall not to make clear what it actually wants. “It is time to make a move,” he writes. “A more formal acceptance of some legal realities hinted at in today’s position papers would be a start; as would a partial, preliminary offer on money as a way of kicking the process forward. Otherwise the odds of a no-deal scenario continue to rise.” In other words, Britain might want to keep “half an eye” on the European Court of Justice post-Brexit, but how can it get that far if negotiators are struggling to see what it is prepared to accept?
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