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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 said. That doesn't sound like certainty to me.
If disentangling ourselves from the ECJ is so complicated, why do it in the first place? As arch Eurosceptic Bill Cash put it to me, people voted for Brexit because they want "control of their own laws."
But David Edward, a judge of the Luxembourg court between 1992 and 2004, sees little point in the exercise. “It is a great sadness to me that the ECJ has become a ‘red line’ in the UK’s negotiations with the EU," he said. "I fear that some people will never be satisfied until they have destroyed what they have never taken the trouble to understand."
Continuing, Edward said "While I was a Judge of the ECJ, I was not conscious that the Court was any less respectful of the interests of the UK than those of any other Member State. It was the Court's duty to be impartial and objective, as we expect the UK courts to be."
Sionaidh Douglas-Scott, an expert in EU law at Queen Mary, echoed this sentiment. “Why is the ECJ so disliked by some in the UK? Which of its judgements (especially those against the UK) do they hate so much? Could they tell us please? Or are they confusing it with the European Court of Human Rights?”
The thinking is clear: if the Court is fair to the UK, where's the sense in leaving it? Especially once you consider that in any future arrangement, as Kerr put it, Britain could wind up "accepting the rules of the ECJ" while being "allowed no judge in the court."
Where to from here? There is much the government must provide more detail on, and it can't come too quickly. On the question of dispute resolution specifically—that issue it was hoped the government paper would address—Neill was forthright.
"Rather than muddying the waters with a range of one-off panels and tribunals," the government "should propose the European Free Trade Association Court as a ready-made, well respected and established body which can mirror the jurisprudence of the ECJ but is institutionally separate, not, to quote the government’s own position paper, within its “direct jurisdiction." The government "can, and should, propose that now.”
This would of course entail the ECJ having a continued role in British affairs—but the government is beginning to understand that the alternative is chaos.
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 said. That doesn't sound like certainty to me.
"Banging on about 'taking back control' doesn’t help our own Judges"Furthermore, Neill said, if we are to end direct ECJ jurisdiction the government needs to "bite the bullet and say what body will arbitrate on dispute resolution—which you need in any international agreement—including the 'comprehensive' free trade deal we say we want with the EU27." The recent position paper has not come close to filling in the policy blanks, then.
If disentangling ourselves from the ECJ is so complicated, why do it in the first place? As arch Eurosceptic Bill Cash put it to me, people voted for Brexit because they want "control of their own laws."
But David Edward, a judge of the Luxembourg court between 1992 and 2004, sees little point in the exercise. “It is a great sadness to me that the ECJ has become a ‘red line’ in the UK’s negotiations with the EU," he said. "I fear that some people will never be satisfied until they have destroyed what they have never taken the trouble to understand."
Continuing, Edward said "While I was a Judge of the ECJ, I was not conscious that the Court was any less respectful of the interests of the UK than those of any other Member State. It was the Court's duty to be impartial and objective, as we expect the UK courts to be."
Sionaidh Douglas-Scott, an expert in EU law at Queen Mary, echoed this sentiment. “Why is the ECJ so disliked by some in the UK? Which of its judgements (especially those against the UK) do they hate so much? Could they tell us please? Or are they confusing it with the European Court of Human Rights?”
The thinking is clear: if the Court is fair to the UK, where's the sense in leaving it? Especially once you consider that in any future arrangement, as Kerr put it, Britain could wind up "accepting the rules of the ECJ" while being "allowed no judge in the court."
Where to from here? There is much the government must provide more detail on, and it can't come too quickly. On the question of dispute resolution specifically—that issue it was hoped the government paper would address—Neill was forthright.
"Rather than muddying the waters with a range of one-off panels and tribunals," the government "should propose the European Free Trade Association Court as a ready-made, well respected and established body which can mirror the jurisprudence of the ECJ but is institutionally separate, not, to quote the government’s own position paper, within its “direct jurisdiction." The government "can, and should, propose that now.”
This would of course entail the ECJ having a continued role in British affairs—but the government is beginning to understand that the alternative is chaos.
