Leaving the ECJ is vital, but the legal back doors must be closed too

Leaving the ECJ is vital, but the legal back doors must be closed too

The UK has today shed fresh light on the legal enigma at the heart of the Brexit puzzle – ending the jurisdiction of the Court of Justice of the European Union after Brexit. This has emerged as a major sticking point in the early stages of the negotiations, with the EU demanding a continued role for the ECJ in directly enforcing the rights of EU citizens in the UK after the UK leaves the EU.

The “future partnership paper” is not intended to set out a precise UK negotiating position, but instead starts with the UK’s key requirement of ending the direct jurisdiction of the ECJ before going on to outline a range of different precedents where the EU has close legal relationships with third countries without involving a direct role for the Court of Justice.

Principally, it is an attempt to start a dialogue with the EU about the appropriate mechanisms for governing any future agreements, rather than presenting a finished solution to the EU as a fait accompli. It is part of a concerted effort from the UK to coax the EU past the first hurdle of accepting that direct ECJ jurisdiction is not necessary to guarantee rights laid down in a binding international agreement, although the first substantive response from the EU will likely come in the private of the negotiations, rather than in any public pronouncement at this time.

The ability of individuals and businesses to effectively enforce their rights is set out as a key priority by the paper. To that end, much of the first part of the paper is essentially a legal “101” intended to soothe EU concerns about how the UK implements international agreements via a dualist system, as do other EU member states including Ireland, Denmark and Sweden, rather than the “monist” system as imposed by the EU itself.

While the UK’s dualist system means that international agreements do not have direct effect in UK law and are instead implemented by separate domestic legislation, this does not make them any less binding internationally. Given the UK’s centuries-long record of respect of the rule of law, and indeed its historic overzealousness in implementing EU law in a far more rigorous way than other member states such as France, EU fears of the UK suddenly becoming a rogue state which reneges on all its international commitments after Brexit are fundamentally misplaced.

What is clear from the paper that the UK does not intend to sign up to an “off-the-shelf” model, such as the EFTA Court, which has recently been the subject of some discussion, and in fact envisages a range of different mechanisms being appropriate to resolve different kinds of disputes, rather than the creation of a permanent standing court with wide-ranging authority over the full spectrum of legal issues arising from any Brexit agreements.

In particular, enforcement issues – of rights of business and individuals – are separated out from dispute resolution, which would typically concern intergovernmental disagreements on the implementation or interpretation of law in the future. There are a number of different precedents which the EU already uses to facilitate legal issues of these sorts. Indeed, the only mechanism that would be completely unprecedented would be for the European Court of Justice to continue to have direct jurisdiction over a third country.

Precedents outlined in the paper include Joint Committees, such as used in the EEA agreement or NAFTA, whereby both sides would nominate representatives to a committee which could then adjudicate on disputes, with the UK leaving the door open to further mechanisms which would make such rulings legally binding. The Joint Committees would typically be convened on an ad hoc basis and would likely include technical experts from both sides in addition to legal and diplomatic officials.

Another mechanism highlighted is arbitration models, which feature in some of the EU’s recent trade agreements, including the CETA deal with Canada and the EU trade deals with Korea and Vietnam, as well as playing a role in WTO dispute resolution and many other bilateral trade deals not involving the EU. These are well established in international law and should form a central part of the UK’s specific proposals.

While the ending of direct ECJ jurisdiction is undoubtedly a necessary condition of taking back control of UK laws, simply ending its direct rule is not sufficient in itself to achieve that end. The Government’s clear red line on direct effect is very welcome, but further safeguards are required to ensure that the UK does not end up in agreement which is so constrained that EU and ECJ rule essentially continues in all but name.

Two of the examples offered in the paper are concerning in that regard – the EU-Moldova agreement and the aforementioned EFTA Court. Leading barrister Martin Howe QC says that, far from referral to the ECJ being voluntary as the paper claims, the Moldova Agreement does in fact force the EU-Moldova arbitration panel to make a reference to the ECJ on any issues concerning provisions of EU law, which would clearly be an unacceptable arrangement for a UK-EU arbitration panel.

Nor does the EFTA Court provide a satisfactory model for future arbitration mechanisms, even less so a final destination. While the jurisprudence of the EFTA Court is an improvement on that of the ECJ, and it would free the UK from the ECJ’s political agenda and pursuit of ever closer union, the vast majority of its rulings follow the ECJ so closely that the UK’s legal autonomy would continue to be severely impinged going forwards. The EFTA door is one that the UK should close sooner rather than later. Indeed, the EFTA Court is strictly only the EEA Court, as it does not include Switzerland in its jurisdiction.

The direct jurisdiction of the ECJ is a totemic issue, and rightly so – it fundamentally undermines the UK’s legal and political system. But ending the direct effect of the court only to replace it with a system which replicates substantial parts of it would be a major misstep and long-term strategic error. The UK should not fall into the trap of believing that legal autonomy has been restored simply because the ECJ no longer has direct effect.

Stability and certainty are important short-term priorities, but ultimately the UK needs to approach all aspects of Brexit, including the legal settlement, with a view to its long-term aspirations outside the European Union, rather than simply as a damage limitation exercise for the immediate future, as those with a pro-Remain mindset, including many in the civil service, are still inclined to see it. An overreliance on the status quo for its own sake is ultimately a self-defeating strategy.

For instance, the UK’s paper on ongoing civil judicial cooperation, published yesterday, essentially calls for the replication of existing EU cooperation mechanisms in a bespoke UK-EU context. While this is largely a pragmatic approach that does not entail any obvious unacceptable legal compromises in and of itself, the strong emphasis on continued harmonisation and numerous references to EEA/EFTA jurisprudence nonetheless raise concerns that the UK could be ensnaring itself in a legal trap, subject to quasi-direct effect of EU law and unable to diverge from the EU’s legal practices should it wish to do so in the future.

Similarly, binding commitments to ongoing regulatory harmonisation should be kept firmly in check. Today’s paper talks about imposing legal reporting and monitoring schemes on both sides, while explicitly identifying future regulatory divergence as a scenario in which dispute resolution proceedings would be invoked. This could directly lead to a scenario where the UK Parliament passes a future Bill enacting reforms of current EU regulations, only to have infringement proceedings launched by the EU, or even have the Bill declared illegal by the arbitration body and struck down. That would patently not amount to the UK taking back control of its ability to govern and legislate for itself.

Continued harmonisation may offer a quick fix to UK-EU trade negotiations, such as in agri-food products as mooted by last week’s paper on the Irish border, or in civil judicial cooperation as mentioned above, but clearly, if the UK ends up agreeing to regulatory harmonisation in each sector of trade and cooperation with the EU one-by-one, and in a deal adjudicated by a body closely aligned to the ECJ, there will be little practical difference between that and simply remaining in the EU.

Future UK trade agreements could also run the risk of falling foul of the agreement and be similarly struck down, while the UK would be obliged to implement any future changes the EU makes to its regulations in all agreed areas of harmonisation. In this situation, the UK would be continuing to apply EU regulations not just as they currently exist, but however the EU decides to change them in future, or else face reprisals and infringement proceedings from the EU.

Such a “Techxit” scenario – in which the UK has technically exited the European Union, but the vast majority of the EU’s legal order de facto continues to apply – would clearly not satisfy the result of last year’s referendum, and would be inherently self-defeating for the UK’s attempts to maximise the opportunities of Brexit.

While there is no need to be allergic to the ECJ, nor every institution that is linked to it in some tangential way, there is a pressing need to recognise that simply ending its direct jurisdiction is not sufficient to restore UK legal autonomy. There is no point closing the front door to the ECJ only to allow it straight back in via the back door.