As the Article 50 timer approaches the seven month mark, Britain can't seem to make up its mind on half the Brexit questions confronting it. Recent internal disagreement over the "divorce bill" has driven this home, but here I want to tackle the future role for the European Court of Justice, which applies EU law across member states including—for now—the UK. This issue, too, is causing its share of bickering.
Britain clearly needs a mechanism for resolving disputes with the EU post-Brexit. The ECJ could technically perform this function, but the "Leave" vote last year is widely viewed as a vote to take back control from EU judges. Brexiteers on the backbenches are therefore firmly of the view that Britain must ditch the Luxembourg court and find another arbiter.
Theresa May duly made ending the jurisdiction of the ECJ a Brexit "red line," but for months we knew little more about the official position, with just the occasional snatch of news from the odd government paper.
Last week, however, there was a sudden change: May said that the ECJ would, in fact, continue to have a role during the Brexit transition period she had announced in Florence. The challenge of finding—or creating—a new Court would wait.
While leading Remainers will be thrilled, this move has infuriated hardline Eurosceptics, who want to "reclaim sovereignty" as soon as possible.
That mere delay on a technical issue can provoke open disagreement is indicative of the fraught political situation May finds herself in. Half her MPs want a Brexit revolution, the other half want gradual tweaks to the current model.
For the former, May's concession is a betrayal. Bernard Jenkin, Conservative MP for Harwich and Essex and leading Eurosceptic, did not hesitate to criticise the government position, saying May’s team will find the change "completely unnecessary" once they think it through.
He isn't alone. Peter Lilley, former shadow chancellor and another prominent Brexiteer, told me that the ECJ should have no role during any interim period since "[w]e will not be able to negotiate trade deals, especially involving services, until we get back control over our laws from the EU and its Court."
“If the ECJ still has jurisdiction, we will not have left the EU”Their comments echo criticism by high-profile Conservative MP Jacob Rees-Mogg, who said after the PM's announcement: “If the ECJ still has jurisdiction [during the transition], we will not have left the EU. It is perhaps the most important red line in ensuring the leave vote is honoured.”
This is in contrast to a rather different strain of thinking in the Tory Party, which says that if we must have Brexit, it is best that we exit in as incremental a fashion as possible, maintaining a close relationship with EU institutions wherever we can.
Nicky Morgan, former education secretary, told me that the PM's announcement was sensible. "If we agree that transition is necessary so businesses, employers and anyone else who currently has to deal with EU regulations only has to make one set of changes to the way they do things after Brexit, then that must mean that for a period of time after March 2019 we maintain the status quo," and "part of that... is continuing ECJ jurisdiction," she said.
Other prominent figures on the pragmatic side of the Tory Party will be thinking much the same thing. (To dig further into this side of the argument, read this recent piece by Bob Neill, Chair of the Justice Committee, on why the ECJ should have some role not just as part of the transition but permanently.)
Who's right? Raphael Hogarth, a research associate at the Institute for Government and author of a recent report on the ECJ, argued that May's announcement was simply her facing up to reality.
"The EU has been clear from day one that if the UK wants to 'prolong the acquis' [EU law] for a transitional period, then it must accept the continuing jurisdiction of the ECJ,” he explained. The PM has indeed said that EU law will apply for any interim deal, meaning that when she spoke in parliament last week, she "was simply accepting what the European Council made clear in April."
One thing is clear: the row does not bode well. This time it was just a delay, but the day will come when May is forced to choose a permanent replacement for the ECJ.
When she does, divisions between the ideologues and the pragmatists within the Tory Party could prove insurmountable. And remember: the ECJ is just one of dozens of intractable problems confronting the government on Brexit. The challenge ahead is immense.
Further reading: Since writing this piece, I notice that the Telegraph has run something on the EU toughening up its stance on the European Court. This dispute looks set to get more complicated still.
