As the Government uses the August news lull to issue its series of position papers on the practicalities of Brexit, one issue that has come up today is the question of adjudication. If an agreement is reached (which is far from guaranteed), there will need to be some tribunal or adjudicating body to arbitrate any disputes relating to it.
The issue is which body that will be. There have been some demands, both on the EU side and among those here who are still unhappy about Brexit, that the European Court of Justice should do the job. But that would be a farcical solution. The Government has rightly argued over the last year that escaping ECJ jurisdiction is a basic requirement of Brexit if we are to take back control of our laws. This is principally because of the court’s mission and its powers. The ECJ is a creature of the EU – charged with upholding both the rules and spirit of the EU treaties, including ever closer union. Furthermore, it is formally supreme – it overrules British domestic law, and British courts must defer to its judgements. It also, as Marina Wheeler laid out in The Spectator, has form for overriding supposed guarantees to member states in the name of extending and entrenching EU powers.
The search is on, therefore, for a more acceptable arrangement for adjudication. As David Davis wrote yesterday:
‘…in leaving the EU, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union. However, it is vital that there are clear mechanisms to manage any disputes between the UK and the EU over the interpretation of the agreements we strike, including on trade and citizens’ rights.
While we believe this will likely require a new and unique solution, our paper will examine a number of precedents. There is a common theme with all these examples — none of them involves the direct jurisdiction of the Court of Justice outside the EU. So, we’re not being dogmatic in our approach but building on existing precedents to find a solution.’
One of those precedents the Government’s paper will examine is the EFTA court. The EFTA court president told Politico recently that it is “not my idea” for his court to adjudicate on a post-Brexit agreement, but the same judge is reported by today’s Times to be involved in a series of meetings with Davis to ‘broker’ an arrangement.
It’s an interesting idea. The EFTA court certainly isn’t as objectionable as the ECJ, but Eurosceptics differ on whether it would be acceptable – for example, Bill Cash reportedly thinks it would be, while Jacob Rees-Mogg views it as too close to being subordinate to the ECJ in practice.
Those who still prefer the ECJ route sometimes point to the fact that the EFTA court is even being considered as an example of Brexiteer hypocrisy. Why, they ask, do you reject the ECJ as an impingement on sovereignty but would be happy to accept EFTA? This is to miss the point. There is a world of difference between international and supranational organisations; the EFTA court rules on the implementation of a static and mutually agreed set of rules, while the ECJ is an activist body, pursuing greater integration over the heads of national authorities. (Incidentally, a similar argument applies when the same people suggest that membership of NATO is somehow a loss of sovereignty – neglecting that NATO is a multilateral treaty which doesn’t legislate or seek to drive a political agenda among its members.)
It may be that the EFTA court does end up being seen as sufficiently neutral, impartial territory in which to lodge the power of adjudication over a post-Brexit deal – the vague language of “docking” such an agreement with the court could mean it agreeing to take on the role, or to host the body which does as a sort of sub-tribunal of the court. But it’s also possible that it becomes more important as a precedent than as the eventual venue.
The very existence of the EFTA court demonstrates something important: that it is not true that a body adjudicating on questions like Single Market access must be an EU institution, nor do its judges need to be EU citizens or representatives of EU member states. It would be absurd to pretend that it must be an EU court that arbitrates on a post-Brexit agreement, given that the EU has for the last 23 years been happy to accept the rulings of the EFTA court relating to its own members. When Davis says he is “building on existing precedents to find a solution”, that example is surely looming large in his mind.
Exactly what conclusions the Government has reached will become more clear when we see the position paper later this week. But we already know one thing: the ECJ remains off the table – and rightly so.