James Forsyth

Theresa May’s inner Cabinet is considering a role for the ECJ after Brexit

Theresa May's inner Cabinet is considering a role for the ECJ after Brexit
Text settings

‘It’ll be curtains for the process’ if the Brexit talks don’t move on to trade and transition in December, according to one of those familiar with the UK government’s negotiating strategy.

In Downing Street, there is a feeling that Theresa May has twice made significant compromises—in the Florence speech and the enhanced financial offer the inner Cabinet agreed on Monday—and if the EU again pockets the concession and says still more is needed, it’ll be hard to see how the UK can stay at the table. Even one of the Cabinet Ministers most keen on a deal with the EU says that ‘we have to get through in December’.

It is, obviously, not just the money that the EU needs there to be ‘sufficient progress’ on in December, but citizens rights and the Irish border too. I understand that on the former, the inner Cabinet considered a role for the ECJ after Brexit on Monday.

What’s being discussed is for the UK to say that it’ll accept ‘voluntary referral’ of cases to the ECJ. So, if a case arose on a point of law that had not been previously addressed, the UK courts would send it over to Luxembourg.

A senior government figure, who is in favour of the idea, tells me that it is a ‘good compromise’. This source argues that the decision to refer would ‘still be a UK court decision’ and that the ‘numbers would be very small’.

What has not been agreed yet, even internally, is how this process would work. Would the decision of the ECJ then be binding, effectively giving it jurisdiction in the UK, or merely advisory? Also, how exceptional would the case have to be, to be referred to the ECJ?

I am told that Theresa May has not yet come to a decision on whether to propose ‘voluntary referral’ or not. But anything that leaves the ECJ having jurisdiction in the UK after Brexit, albeit in a limited sphere, will be controversial. Critics will point out that it breaches the red line that Theresa May set out at the Conservative conference in 2016. But I understand that the impression left by Monday’s meeting is that ‘voluntary referral’ would be acceptable to the Cabinet.