As Paul noted yesterday, the Government’s Brexit White Paper is the subject of fierce dispute on several fronts. Quite how far the new approach ‘evolves’ (or retreats) from the policy laid out in the Mansion House speech, and how close it runs to breaching the Prime Minister’s supposed red lines, are among the most important.

Unsettlingly, Downing Street still appears to believe that it would be successful if able to claim a clever-clever technical honouring of the words of those promises, even if it does not honour their spirit, or deliver what the Prime Minister led voters to expect they would mean in practice. That is an obviously dangerous approach to take – more often than not, voters would prefer someone honestly disagreed with them than tried to pose as being on their side while trying to sneak things past them on a technicality.

Wise or not, that approach requires us to explore exactly what concrete proposals lie beneath the headline claims that are being made.

Most importantly, to what extent would the White Paper really fulfil the demand, and the ensuing pledge, to take back control of our laws?

Theresa May got from the outset that this was a crucial requirement of fulfilling Brexit. She rightly and clearly stated early on that she knew it meant – among other things – ending the power of the European Court of Justice (ECJ or CJEU) over UK law. Here are her words from the 2016 Conservative Party Conference:

“We are not leaving the European Union only to give up control of immigration all over again. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen. We are leaving to become, once more, a fully sovereign and independent country.”

That could not be more clear: it is an inherent part of properly carrying out Brexit to escape the ECJ’s jurisdiction. The Prime Minister, and the Government, have restated that principle as being non-negotiable time and again.

Devil in the detail

So how does the White Paper measure up?

The opening makes the right noises. May’s foreword specifies ‘ending…the jurisdiction of the European Court of Justice in this country’.

But it’s in the detail of the proposed future function of UK and EU law that things get far more sticky, leading to concerns that the ECJ might retain indirect or even direct authority over our laws under this model.

Paragraph 38 in Section 4.4.3 addresses ‘Where the UK participate[s] in EU bodies or agencies’. It concedes things that we knew – ‘it may be appropriate for the UK to make a financial contribution…[and] the UK would respect the rules under which those bodies or agencies operate’. Furthermore, ‘the UK would respect the remit of the CJEU such that if there was a challenge to a decision made by an agency that affected the UK, this could be resolved by the CJEU’.

That isn’t in itself surprising: joining agencies involves paying membership subs and following their rules. But it is a handy reminder that the ECJ reaches through and oversees literally the whole of the EU’s body of law – the UK might choose to get involved in some bits of that, even in the limited scope of joining an agency, but as soon as it does so it will be coming into some sort of inferior and direct relationship with the Court. That isn’t a particularly unreasonable condition of optionally joining an agency, it is an inevitable if cautionary fact of how the EU works.

The drafters of the White Paper obviously know this, but are just as obviously somewhat nervous about saying so. The paragraph concludes ‘… noting that this would not involve giving the CJEU jurisdiction over the UK.’ It isn’t clear what that actually means in practice. How could the Court be able to authoritatively resolve a decision affecting the UK but that not equate to having some jurisdiction over the UK? The two concepts are inconsistent with one another.

Interestingly, the relevant section of the DEXEU draft of the White Paper published by this site does not contain the example of a challenge, or the attendant caveat that ‘this would not involve giving the CJEU jurisdiction’. It feels like someone who is nervous about whether the ECJ red line is being honoured more broadly has tried to add in some slightly faux reassurance, even on an aspect of the future relationship which most Brexiters wouldn’t be particularly alarmed by.

A ‘common rulebook’

The reason for that nervousness might be found in the consideration of the so-called ‘common rulebook’ that the Government proposes should apply to various parts of the economy, particularly on goods.

It’s important to note that the proposed rulebook is not actually ‘common’ in any reciprocal sense. The EU would not be adopting any UK law as its part of the deal, whereas the UK would be agreeing to obey and apply EU law on an ongoing basis, including copying and pasting new EU laws into UK law. It would be more accurate to call it an ‘EU rulebook’ than a ‘common’ one – it is only ‘common’ in the sense that if my neighbour’s TV remote controlled not just his television but also mine, we would share a ‘common decision’ on what to watch each evening.

So is it possible to propose that the UK could continue to obey large chunks of EU law, but without the ECJ having authority over law in this country? The ECJ is the central and supreme legal authority when it comes to defining and interpreting all EU law. The very meaning of the ‘common rulebook’ would itself rest on the established case law of the Court. Paragraph 35, Section 4.4.2:

‘Where the UK had agreed to retain a common rulebook with the EU, the UK would commit by treaty that its courts would pay due regard to CJEU case law…’

That is a treaty commitment to the authority of the ECJ holding sway over the meaning of the contents of the ‘common rulebook’ in the UK. Importantly, that includes committing to follow the developing case law of the Court – the new rulings of the ECJ, on existing or new EU laws, would have power in this country. The Government’s defence is that the ECJ would no longer have a supreme status in the hierarchy of UK courts, and British courts could no longer refer cases up to it, but that seems like a change to procedure, not to the actual power of this fundamentally integrationist, activist court to define the meaning of the law of the United Kingdom. Direct or technically indirect, in practice the ECJ would still be defining large swathes of our law.

Still supreme

As Martin Howe QC of Lawyers for Britain argues, this aspect of the Government’s proposal would be reinforced by the fact that the arbitration mechanism put forward in the White Paper ultimately involves the ECJ deciding matters, too:

‘Since the ECJ will ultimately prevail, UK courts will see little point in departing from ECJ judgments even if they think that they are wrong.’

How so?

The White Paper foresees a Joint Committee established between the EU and the UK to deal with technical matters arising from the proposed agreement. The document proposes that the Committee be charged with trying to ‘prevent disputes from arising, whether related to implementation, enforcement or compliance’, but also ‘in the unlikely event that such disputes did arise, the Joint Committee would facilitate their resolution’. That ‘resolution’ would involve negotiation, to start with, and then an adjudication panel if one or both parties felt negotiation was going on too long or making insufficient progress.

That’s a sensible provision to make. Some form of dispute resolution and adjudication arrangement is needed in any international agreement – indeed, readers may remember that the Government was at one time exploring the idea that a branch of the EFTA court might be able to do the job.

But against what tests would such an arrangement adjudicate disputes? Paragraph 42, Section 4.5.1 of the White Paper says that:

‘Where the UK and the EU had agreed to retain a common rulebook, it is possible that a dispute could relate to whether these rules had been interpreted correctly. The UK recognises that only the CJEU can bind the EU on the interpretation of EU law, and therefore in these instances, there should be the option for a referral to the CJEU for an interpretation, either by mutual consent from the Joint Committee, or from the arbitration panel. The CJEU would only have a role in relation to the interpretation of those EU rules to which the UK had agreed to adhere as a matter of international law. The Joint Committee or arbitration panel would have to resolve the dispute in a way that was consistent with this interpretation. This would respect the principle that the court of one party cannot resolve disputes between the two.’

So the meaning and implementation of that supposedly ‘common rulebook’ would not only be decided by reference to past or new rulings of the ECJ, but disputes on it would be ultimately decided by the ECJ under the rules of the deal itself, too.

Howe’s description of that arrangement is that ‘the arbitration panel would merely act as a postbox’. For all the White Paper’s talk of UK courts no longer referring cases up to the ECJ, it would still sit at the top of the tree, with the ultimate decision. Over the adjudication process would sit the same judges, court and rules that we are supposedly leaving.

Yet again, apparently for political reasons the White Paper asserts something about that arrangement which simply is not consistent with the document’s own details:

‘This would respect the principle that the court of one party cannot resolve disputes between the two.’

How? The ECJ – an institution of the EU, charged with responsibilities to the EU’s treaties and the integrationist mission of ever closer union – would ultimately be responsible for ruling on disputes in which the EU was one party. It is absurd to suggest that the principle is respected by a process in which the Court says “x is the law”, and then the Joint Committee’s arbitration panel walks out of the room and repeats the Court’s judgement as its own verdict.

That looks like direct authority for the ECJ, bolstered by the indirect authority which Howe refers to when he predicts that UK courts will work towards the conclusions that they know the ECJ will ultimately force on them if they choose to disagree, all overseeing a body of law which the ECJ helps to define in the first place.

The Prime Minister made a very clear pledge to her Party and to the electorate, against which this proposal must be tested:

“…we are not leaving only to return to the jurisdiction of the European Court of Justice.”

Can this plan really be said to live up to those words?