Its recent position paper on the Court—and what comes next—did not provide nearly enough detailby Alex Dean / September 6, 2017 / Leave a comment
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In government documents, one word can be the difference between a statement of the obvious and a significant policy change. Last month’s paper on the European Court of Justice, titled “Enforcement and dispute resolution—a future partnership paper,” was a case in point. All the discussion quickly focused around one word in the document: “direct.”
Having spent a year pledging to end the jurisdiction of the ECJ, the paper made clear that May will now look only to end “direct jurisdiction.” Legal commentators had until then been rather worried: the government seemed simply not to understand the difficulty of abandoning the ECJ altogether. One word—and one humiliating climbdown—later, analysts are feeling slightly more optimistic.
But much remains unknown—including what “direct jurisdiction” actually means in practice. In light of the renewed debate, I spoke to leading experts about Britain’s future relationship with the ECJ. One thing was agreed upon: a whole lot more clarity—not to mention compromise—is needed before we can begin to have any confidence in the government’s approach to the Luxembourg court.
John Kerr, the author of Article 50, was under no illusions as to the complexity ahead. The process of disentangling ourselves from the ECJ will, he said, be “immensely elaborate.” Did the government’s document offer much help? While it was met with approval elsewhere, Kerr pulled no punches. The recent position papers in general were “rather strange.” They “duck the big issues or they raise options without declaring preferences. It’s very hard to spot a policy in them,” he told me.
Bob Neill, Conservative MP, barrister and Chair of the Justice Committee, had harsh words for Theresa May. The government “simply banging on about ‘taking back control’ doesn’t help our own Judges,” he told me. It “needs to be much clearer about the relationship between our Courts and the ECJ once we leave the EU.” This dissent from within the ranks is bound to antagonise the PM.
Britain will in practice accept the entire body of European law on Brexit day. This is because the Repeal Bill—which MPs vote on next week—will transpose it into UK law. The aim of the exercise is to provide certainty, with the laws we don’t want to be unpicked at a later date. But Neill was unconvinced. British judges don’t know “what weight to give to ECJ decisions” interpreting that law once it is incorporated, he…