British Prime Minister Theresa May has reiterated that the UK’s departure from the EU will mean the country leaves the jurisdiction of the European Court of Justice (ECJ), and that Britain “will take back control of our laws”.
It came as the government published the latest and arguably most important of its position papers relating to its Brexit negotiations with the European Union, on “Enforcement and dispute resolution”.
The paper says that the UK “will bring about an end to the direct jurisdiction” of the ECJ. The use of the word “direct” has led to suggestions that the government was rowing back on a commitment to sever ties with the EU’s judicial institution. The prime minister had twice used key speeches to vow that the jurisdiction of the ECJ would end in the UK.
On Wednesday she insisted that the government’s position had not changed. “What we will be able to do is to make our laws, parliament will make our laws. It is British judges who will interpret those laws and it will be the British Supreme Court who will be the ultimate arbiter of those laws. We will take back control of our laws,” she said during a visit to a motor factory in Guildford, Surrey.
As the government seeks what are seen as “softer” Brexit options in keeping close economic ties with the EU after the UK’s departure, the future influence of the European Court has been brought into sharp focus. Companies from outside the EU that sell products in the European Single Market have to comply with EU regulations and relevant ECJ rulings.
Critics say it will be impossible to stop the European Court having some influence, especially if UK businesses are to continue to operate in European markets. The pro-EU Open Britain campaign group disagreed with the prime minister over her insistence that government policy had not changed, saying the policy paper was a “climbdown camouflaged in jingoistic rhetoric”.
As had been reported, the UK paper floats ideas for separate mechanisms for dispute resolution independent of the ECJ – via arbitration from a third party such as the European Free Trade Area (EFTA) Court.
“I think what businesses want to know is that in future relationships, if a dispute arises, how will it be possible to resolve that… we will put in place arrangements to ensure that businesses have the confidence of knowing that they can continue to trade across the European Union,” Theresa May said.
However, the UK government holds firm on its difference of opinion with the European Commission over the issue of citizens’ rights. The Commission states in its position paper that it wants EU nationals living in the UK to continue to be protected under the ECJ’s wing even after Brexit. The British government, which published its own document on citizens’ rights in June, says rights and obligations under future Brexit agreements “will be enforced by the UK courts” and that this would include “an agreement on citizens’ rights”.
There was embarrassment for the British government after the Home Office (interior ministry) mistakenly sent up to 100 letters to EU nationals living in the UK ordering them to leave the country or face deportation. Brexit does not take effect until the end of March 2019 and in the meantime people from the EU have every right to continue living in the UK. The government has apologised for the error.
The question of Europe’s highest court has become a key theme for Brexit supporters who see ending its jurisdiction as a symbol of taking back control of UK affairs from the EU. However Theresa May’s insistence that the matter is a government “red line” in negotiations has been criticised as unnecessarily limiting options – and jeopardising the UK’s future involvement in key European agencies and institutions.
Commentators point out that the European Court of Justice has often supported the United Kingdom on its stance over key issues such as the Single Market. There have been suggestions that in their hostility towards the ECJ, Brexit supporters may have been confusing the court with the non-EU European Court of Human Rights, whose decisions have sometimes been unpopular in the UK.