Dr Gunnar Beck is Senior Fellow of Policy Exchange’s Judicial Power Project, a Reader in Law at SOAS, University of London and a practicing barrister. Professor Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Associate Professor in the University of Oxford, Fellow of St John’s College.
When the EU treaties expire, the UK will no longer be subject to EU law or to the continuing jurisdiction of the European Court of Justice (ECJ).
However, the UK is negotiating a “new, deep and special partnership with the EU” and some, including the European Commission, have proposed that the ECJ should enforce the terms of any future UK-EU agreement.
Yesterday’s position paper on enforcement and dispute resolution makes clear that the Government will not accept this proposal or any other arrangement that sees the UK remain subject to ECJ jurisdiction. For some commentators, this is the height of folly. Not so.
The Government is entirely right to refuse to accept the ECJ settling the meaning and application of any post-Brexit agreement. The ECJ is the EU’s court. In disputes between EU and UK it would obviously be biased in favour of the EU.
As the Government notes, for an agreement to be authoritatively interpreted by the courts of one party only would be contrary to almost universal international practice.
The ECJ’s performance in adjudicating disputes involving conflicts of interest between member states and EU is not an encouraging precedent. It is not an impartial arbiter but aims to promote European integration and, while often politically astute, it is not disciplined by legal materials in the way that a court ought to be.
This means that member states are vulnerable to having legal obligations foisted on them by judicial lawmaking, obligations that they did not agree to adopt and which are enforced, by the ECJ and Commission, in a manner that is difficult to resist.
Many of the key elements of the European legal order have been invented in this way. British lawyers and judges, amongst others, have long expressed dissatisfaction with the ECJ’s fast and loose legal technique, including in cases relating to free movement rights, migration, asylum and deportation, and citizenship.
There are very good reasons for the UK to wish to escape from the ECJ’s continuing jurisdiction, and to look askance at claims that the ECJ can be relied upon to fairly uphold any future UK-EU agreement.
What are the alternatives? Yesterday’s paper does not set out a definitive proposal for how the agreement should be upheld, save to rule out ECJ involvement, but does sketch a set of principles that should govern this question and outline a range of possible options.
The Government says that its concern is to maximise certainty, to help individuals and businesses enforce their rights, to respect the autonomy of the UK and EU legal orders, and to respect its international legal obligations. It also takes pains to distinguish the question of how the agreement is enforced from resolution of disputes about its meaning or implementation.
Rights under the agreement will come into force in UK law, the Government says, by way of domestic legislation, which will be interpreted and applied by the UK courts – no need for the ECJ here.
All this implies an intelligent underlying vision: the legal dimension of the relationship between UK and EU should more closely resemble that which holds between equal parties to other international agreements, rather than that which characterises the member states subsidiary standing in the European legal order.
It is in part this difference in perspective which makes the ECJ unsuitable in relation to for any future deal. The ECJ sees and always has seen itself as the supreme court of the European legal order (and agent of integration), not as a fair arbiter between sovereign states and the EU.
The shape that the Government’s proposals may later take is suggested by the paper’s concern to distinguish enforcement from dispute resolution, leaving enforcement largely to domestic legislation and litigation and imagining various modes of dispute resolution, including political dialogue, mediated by a joint commission, or arbitration, as well as monitoring, supervision and reporting.
The sheer variety of possibilities is itself significant. It makes clear that an agreement may be enforced in a range of different ways, with, say, arbitration making more sense for free trade terms, whereas political dialogue being a better fit for security or justice arrangements.
Arbitration may take many forms, and the Government’s paper does consider briefly whether the EFTA court might have a role in resolving disputes about the agreement. This is an underdeveloped proposal, which has attractions but real downsides too. The EFTA court is not an independent court, and is charged with extending relevant parts of EU law to members of the EEA agreement.
The court could perhaps be invited and authorised to enforce the terms of a post-Brexit deal, but unless the UK was very careful and clear its terms might be interpreted in lockstep with the ECJ.
This gives rise to a tricky question, which the Government has yet to answer: how far, if at all, will the UK agree to be bound by EU law in the future? The UK may agree to this, in relation say to financial services or some other particular domain, without agreeing to be subject to the jurisdiction of the ECJ.
Britain might commit itself to follow whatever the EU legal rules on point are, as understood by the ECJ, or the UK and EU might agree to strive for convergence, which is a two-way street and would entitle the UK to resist or protest misinterpretation.
The Government’s decision to resist continuing ECJ jurisdiction is welcome and right. Its vision for the legal shape of the UK-EU agreement is at an early stage but looks promising. There is good reason for the UK to seek a stable agreement, which the parties commit to implementing and which is supported by a range of monitoring and dispute resolution mechanisms, none of which need to amount to anything like the radical vulnerability that subjection to the ECJ involves.