7 July 2017

The Labour Party has this week taken aim at the government’s policy on European Court of Justice (ECJ) jurisdiction, with Shadow Brexit Secretary Keir Starmer calling on Theresa May to drop her “ideological and deeply unhelpful red line” on ruling out ECJ oversight in the UK. He stated that this “red line” would “prevent any future involvement of an EU-UK court-like body (over regulation), even when such an arrangement is demonstrably in the national interest.”

Starmer’s view of the government position is of course intentionally simplistic, and presents the question: how different are the two parties’ positions on ECJ jurisdiction?

There are several areas in which the EU may see a role for the ECJ post-Brexit, and how acceptable these are will vary by issue. Disputes arising before Brexit will presumably be under ECJ jurisdiction. Arguably, so will the oversight of any EU institutions we wish to remain part of which rely on the court’s oversight. However, the question of who interprets and enforces the withdrawal agreement, any transitional arrangement, and the future relationship will be determined in negotiations.

The government position

At her Lancaster House speech, where she laid out her roadmap for Brexit, Theresa May said:

We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country. Because we will not have truly left the European Union if we are not in control of our own laws.

This seems plain, but it does not rule out an “EU-UK court-like body” as stated by Starmer. In the government’s White Paper The United Kingdom’s exit from, and new partnership with, the European Union, it states that “ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution”, and provides an annex with examples of dispute resolution mechanisms from EU trade agreements with other countries. These mechanisms typically involve initially attempting to resolve the dispute through consultation and mediation, and, failing that, referral to an arbitration panel comprised of arbitrators from both interested parties and an independent third party. To have a dispute settlement procedure determined by a body comprised entirely of one interested party would be unprecedented and unacceptable. As Brexit Secretary David Davis said, “To make sure such an agreement is properly enforced, we will seek a new dispute resolution mechanism. It won’t be the European Court of Justice, it will be international.”

It is therefore disingenuous for Starmer to suggest the government’s “red line” would prevent the involvement of any EU-UK court-like body post-Brexit. It is clear the government “red line” rules out an EU-only court, in which there are no UK judges, making rulings with direct effect on what would then be UK jurisdiction, but it does not rule out establishing an arbitration procedure which could involve EU judges but which must also involve UK judges.

The withdrawal and future arrangement

Last week the European Commission called for ECJ oversight of the rights of EU citizens in the UK, and the ability to fine the UK should it find a breach. This would be unacceptable to the Government, as it would involve rights of residents in the UK being determined by what would then be an interested foreign court. As such, the Telegraph has reported that the UK Government may seek to find a solution by entrenching the rights in international law, and therefore having them protected by the International Court of Justice.

The Labour Party approach in this area is not significantly different, in that they also do not support ECJ oversight on this issue. Starmer criticised the idea that rights should be protected by UK courts on the basis that Parliament could subsequently change the law, however, his solution was not for the ECJ to have ultimate jurisdiction. Instead he proposed the creation of “a court-like body that is external” and that must involve authorities from outside the UK.

On other areas of the withdrawal and future arrangement, the precise makeup of the dispute resolution will of course be determined by the negotiations, but it would be in neither Labour’s nor the Conservatives’ interest for any disputes between the UK and the EU to be ruled on solely by an EU court.

Oversight of EU arrangements

Should we wish to remain integrated in certain EU arrangements which rely on ECJ oversight, then it is likely that accepting this will be a necessary price for our involvement; likewise if we choose to remain in certain areas as part of a transition. The Euratom agreement relies on the ECJ to provide legal authority to its intrusive inspection powers. It is unlikely that the EU would countenance the UK remaining part of Euratom but not remaining subject to the ECJ on matters pertaining to it. Likewise, the Single European Sky arrangement is overseen by the ECJ; Switzerland has been forced to accept the ECJ’s role in order to participate in the arrangement, despite an aversion to foreign court oversight. There may be certain policy areas in which the UK will do the same.

The government has already signalled its plans to leave Euratom, the European Medicines Agency (EMA), and other bodies which require ECJ oversight, therefore avoiding the need for ECJ jurisdiction in these areas. Labour, however, campaigned on a manifesto which explicitly stated a wish to remain in Euratom, the EMA, and Europol. Therefore it is not surprising to see Labour call on the government to drop its opposition to the ECJ on these issues. Indeed, Starmer framed his arguments for allowing ECJ jurisdiction by saying it “would make it far easier for Britain to stay inside common EU arrangements that benefit the UK.”

How much common ground do the parties share?

There is a significant difference between accepting ECJ jurisdiction over certain arrangements for ease of continued integration in that area, versus allowing the ECJ to be the sole authority on interpreting future agreements between the UK and the EU. It does not seem that either party would accept the latter. Even for the non-EU states in the European Economic Area, they do not accept direct ECJ rule; their dispute resolution is conducted by the Court of Justice of the European Free Trade Association States, made up of judges from EFTA states. However there is an argument to be made over whether accepting the ECJ’s role in institutions such as the EMA is worth continued cooperation, or whether leaving the EMA but pushing for a new relationship, with its own dispute resolution mechanism, is the preferable position.

This is the main point of contention between the two parties; whether accepting ECJ oversight is a price worth paying for access to certain institutions. There will be plenty of debate over this, and some potential disagreement over the role of the ECJ in any transitional agreement, but neither party will want to allow sole ECJ interpretation of the withdrawal agreement or on any agreement on the future relationship between the UK and the EU post-Brexit. Starmer’s suggestion that the Conservatives’ aversion to ECJ jurisdiction is the same as accepting no joint dispute resolution body is false; in reality their respective plans for the interpretation of withdrawal and future relationship agreements are much more similar than the political rhetoric would suggest.