A paper being published by David Davis’s Department for Exiting the EU (DExEU) on Wednesday will say it would be “unprecedented” for the ECJ to have direct jurisdiction over a non-member state and argue that it is not “necessary or appropriate” for it to have this power in relation to the UK.
Britain is in a “position of strength” to forge new judicial arrangements for dealing with disputes with the remaining 27-nation bloc, the paper will state.
Leaving the ECJ is a totemic goal of many Brexiteers, and the exact relationship between UK and EU law is one of the most explosive elements of the ongoing withdrawal negotiations, with the European Commission insisting the Luxembourg-based court should continue to oversee the rights of EU citizens living in Britain after Brexit.
But critics argue the pledge to end “direct” jurisdiction falls short of Theresa May’s promise last year that “we are not leaving (the EU) only to return to the jurisdiction of the European Court of Justice”.
Legal experts have warned Britain is likely to have to follow ECJ rulings if it wants to remain closely linked to the single market and customs union.
Liberal Democrat leader Sir Vince Cable said the Government’s position amounted to a “sensible and long overdue climbdown” by the Prime Minister, whose Brexit red lines were “becoming more blurred by the day”.
“The Government seems to have belatedly accepted it won’t be possible to end the EU court’s influence in the UK without damaging our free trade and security co-operation with Europe”, he said.
Labour MP Chuka Umunna, a leading supporter of the Open Britain campaign against a hard Brexit, said: “Despite what Leave campaigners claimed, ministers seem to be hinting that total judicial sovereignty is impossible.
“It appears that the Government realises that European judges will have some say over what happens in Britain, whether we are in the single market or not.
“So why are they still planning to damage our economy by taking us out of the single market when doing so will not really take back control of our laws?”
One of a slew of position papers being released by DExEU before the third round of formal Brexit talks in Brussels next week, the new document insists that it is “normal” for the EU to strike agreements with third countries without the ECJ having direct jurisdiction over enforcement and dispute resolution.
There is “no precedent” requiring this in the case of a future UK-EU agreement, it states.
It will set out a range of models already in operation to resolve disputes between the EU and non-member states, including the EFTA Court which has jurisdiction in disputes involving Iceland, Liechtenstein and Norway.
But it will suggest the UK is seeking to strike its own bespoke arrangement, pointing out that the exact process used is “often tailored to the content of the agreement and varies across different issues such as trade or security”.
Speaking ahead of the document’s publication, a UK Government spokesman said: “We have long been clear that in leaving the EU we will bring an end to the direct jurisdiction of the Court of Justice of the European Union in the UK.
“It is in the interests of both the UK and the EU, and of our citizens and businesses, 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 between the UK and the EU on the application or interpretation of these obligations, those disputes can be resolved efficiently and effectively.
“This paper takes the next steps as we prepare to engage constructively to negotiate our approach to this.”
The Institute of Directors urged ministers to seek compromise over the future influence of the ECJ on Britain’s laws and said any transitional period should allow for continued jurisdiction by either the ECJ or EFTA court.
The group’s head of Europe and trade policy Allie Renison said: “We hope that both sides remember we are facing an unprecedented set of circumstances with two deeply interwoven legal systems which will require compromise to reach a deal.
“While we have had our criticisms of the Court of Justice in the past, we also recognise that it affords both businesses and individuals an important right of direct legal redress in the application of EU law.
“Therefore, it is essential that our new partnership deal with the EU allows them similar direct rights in any disputes arising out of this agreement.”
Shadow Brexit secretary Sir Keir Starmer said the move appeared to contradict the “red line” laid out by Mrs May in a prominent speech earlier this year.
He said: “The Prime Minister’s ideological insistence that there can be no future role whatsoever for the ECJ or any similar court-like body risks preventing the deal Britain needs. It has already held back a sensible and early agreement on issues such as Euratom and EU citizens.
“But the repeated reference to ending the “direct jurisdiction” of the ECJ is potentially significant.
“This appears to contradict the red line laid out in the Prime Minister’s Lancaster House speech and the Government’s white paper, which stated there could be no future role of the ECJ and that all laws will be interpreted by judges in this country.”