Britain says Brexit will end the ‘direct jurisdiction’ of ECJ

Britain outlines plans to break free of European Court after Brexit

The entrance of the European Court of Justice in Luxembourg. Photograph:  Francois Lenoir/Reuters

The entrance of the European Court of Justice in Luxembourg. Photograph: Francois Lenoir/Reuters


Britain on Wednesday outlined several escape routes from the “direct jurisdiction” of the European Court of Justice (ECJ) after Brexit, one of prime minister Theresa May’s key aims in talks to unstitch 40 years of EU membership.

In a British government paper on the highly-sensitive topic, Britain set out its determination to negotiate 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 which 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.

Ms May 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 placated many pro-Brexit lawmakers in her Conservative Party who say the ECJ has slowly sucked power from Britain’s courts and parliament. Leave Means Leave, a pro-Brexit campaigning group, said it welcomed the government’s “overall commitment” but wanted to make sure “the ECJ no longer plays a part in the British legal system”.

Citizens’ rights

But Ms May’s stance could further harden the EU’s stance on the court. 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 says its court would guarantee the rights of EU citizens or businesses in the country: “Those rights and obligations will be enforced by the UK courts and ultimately by the UK Supreme Court.”

The EU said it was sticking to its stance and hoped to make progress on three areas as a priority - the rights of expatriates, Britain’s border with the Republic of Ireland and a financial settlement.

That distance in viewpoints could delay an agreement with the EU on the divorce, a partner from international law firm Bird & Bird said.

“The government’s arguments about the role of the ECJ will contribute to prolonged uncertainty for businesses in relation to Brexit,” said Richard Eccles.

Ibec, the group that represents Irish business, welcomed the recognition by the UK that robust legal oversight would be needed to govern future EU-UK relations post-Brexit.

Its director of EU and international affairs Pat Ivory said: “Business needs legal certainty and a predictable regulatory environment in which to operate. Setting up any new system will be complex and take time, which reinforces the need for a long transition period before any new arrangements take effect.”

But any agreement on future EU-UK trade relations “must include comprehensive, legally enforceable commitments to ensure fair competition”.

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 Ms 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.

But opposition lawmakers said the paper was tantamount to admitting defeat by a government which lost its authority at an ill-judged election two months ago by watering down one of its “red lines”.

“Not much is left of (Brexit minister) David Davis’s so-called ‘red line’ of taking back control from European judges,” Andrew Adonis, a leading pro-EU campaigner, said.

“This is a climbdown camouflaged in jingoistic rhetoric. Even if we leave the Single Market, European judges will still have considerable power over decisions made in the UK.”