A key question in the Brexit talks is how any deal between the EU and UK will be upheld. The government has begun to address this today, publishing a paper on enforcement and dispute resolution. One thing is clear: ministers are committed to extricating the UK from the jurisdiction of the European Court of Justice (ECJ). In fact, the main point of the paper could be summed up as spelling out why Britain cannot agree to the ECJ being the arbiter of any Brexit deal.
The government is entirely right about this. Sovereign states do not and should not enter into agreements in which the meaning and effect of the agreement is settled by the courts of the other party. The reason is obvious: one party would be at the mercy of the other. What’s more, the ECJ is no neutral arbiter, and its record is hardly one of dispassionate law application. The court has a political agenda and has demonstrated a systematic bias in favour of deeper European integration. For the UK to agree to be bound by the ECJ’s interpretation of the terms it agrees with the EU would be madness.
Understandably, given that the UK is seeking a ‘deep and special’ partnership with the EU, the paper published today is too polite to dwell on the court’s peculiarities. However, it does note that when the EU reaches agreements with other non-member states, disputes about those agreements are not settled by the ECJ.
Instead a range of enforcement and adjudication options are available. The paper outlines these - drawing from past EU agreements with other non-member states and from international agreements (especially free trade deals). The point here seems to be to persuade Brussels that the EU’s own practice is more open and flexible than it first appears.
If the UK’s eventual agreement with the EU is intended to give rise to rights and obligations for individuals and businesses in the UK then it will need to be implemented by domestic legislation. The agreement will bind the UK and EU in international law, but under our constitution it will not change domestic law until Parliament enacts legislation to this effect. Parliament would be very likely to enact this legislation and it would be faithfully interpreted and applied by UK courts. This should assure individuals and businesses that their rights under any Brexit agreement will be upheld.
In the event of subsequent disputes between the UK and EU about how the agreement is interpreted or applied, the paper considers a range of options. One is political or diplomatic dialogue, mediated by a joint committee. This is an option often adopted in relation to justice and security matters. Another is arbitration: a common feature of many free trade arrangements. And there are various options also put forward for monitoring, reporting and supervision.
Another option – widely discussed in the press – is a possible role for the EFTA court. Today’s paper does touch on the EFTA court but does not discuss it in great detail and certainly does not propose it as the obvious solution. This is perhaps no surprise given the practical difficulties with relying on the EFTA court, which is formally independent of the ECJ but largely follows that court’s case law. The suitability of the EFTA court might turn on what the UK-EU agreement ends up involving. If the agreement replicates concepts in EU law then there would be a strong risk that the court would simply track the ECJ’s rulings. But if the agreement made clear that it was free-standing, and was not simply an agreement to follow future EU law as it developed over time, then the EFTA court might prove an honest broker, fairly upholding the agreement.
The paper clearly leaves many questions unanswered. But by outlining this range of alternatives, it begins to sketch a relationship between the UK and EU similar in kind to other international agreements between sovereign states rather than the subjection of one state to another legal order.
The UK cannot reasonably agree to the ECJ interpreting and enforcing the agreement and today’s paper is right to reject the court’s continuing jurisdiction in Britain. The government has not ruled out agreeing to follow EU law in part. But the clear implication is that in the government’s view the implementation of any agreement will be a matter first and foremost for the UK authorities, subject to familiar remedies in international law - but not to the authority of the EU’s own courts, from whose jurisdiction the UK will have departed.
Richard Ekins is Fellow of St John’s College, Oxford and Head of Policy Exchange’s Judicial Power Project