Britain will have to keep “half an eye” on the rulings of the European Court of Justice even after it has left the direct jurisdiction of the Luxembourg-based judges, a Government minister has said.
Critics have accused Prime Minister Theresa May of a “climbdown” on her pledge that Britain will take back control of its laws post-Brexit, after it emerged that the Government is now proposing only to end the “direct” jurisdiction of the ECJ.
But Brexit Minister Dominic Raab said it was “absolutely and wholesale wrong” to suggest that Britain would still be forced to go along with foreign judges in a foreign court after EU withdrawal.
“Our commitment as a Government since the referendum has been crystal clear – we’re ending the jurisdiction of the European Court over disputes between the EU and the UK, that’s not on the table, Mr Raab told BBC Radio 4’s Today programme.
“But look, let’s also be clear about it – when we leave the EU we are taking back control over our laws. There will be divergence between the case law of the EU and the UK, and it is precisely because there will be that divergence as we take back control that it makes sense for the UK to keep half an eye on the case law of the EU, and for the EU to keep half an eye on the case law of the UK.”
A paper being published by David Davis’s Department for Exiting the EU (DExEU) on Wednesday will say it is not “necessary or appropriate” for the ECJ to have direct authority over UK law after Brexit, adding that it would be “unprecedented” for it to do so.
The paper will set out a range of alternative models for dealing with legal disputes with the remaining 27-nation bloc, and say that Britain is in a “position of strength” to forge new arrangements suited to its own circumstances.
Leaving the ECJ is a totemic goal of many Brexiteers and the exact relationship between UK and EU law is one of the most explosive elements of the ongoing withdrawal negotiations.
The European Commission insists the court should oversee the implementation of the withdrawal agreement and rights of EU citizens in the UK after Brexit. And legal experts have warned that Britain is likely to have to follow ECJ rulings if it wants to remain closely linked to the single market and customs union.
Shadow Brexit secretary Sir Keir Starmer said the use of the word “direct” in the DExEU paper appeared to contradict Mrs May’s previously stated “red line” that the ECJ should have no future role in UK law.
“The Prime Minister’s ideological insistence that there can be no future role whatsoever for the ECJ or any similar court-like body risks preventing the deal Britain needs. It has already held back a sensible and early agreement on issues such as Euratom and EU citizens,” he said.
Liberal Democrat leader Sir Vince Cable said the Government’s position amounted to a “sensible and long overdue climbdown” by the Prime Minister, whose Brexit red lines were “becoming more blurred by the day”.
“The Government seems to have belatedly accepted it won’t be possible to end the EU court’s influence in the UK without damaging our free trade and security co-operation with Europe”, he said.
And Conservative former attorney general Dominic Grieve told Today: “The idea that we are somehow going to wholly escape the influence of the European Court of Justice on our lives in this country is, I’m afraid, pie in the sky.
“It’s going to continue in many areas to have a very profound influence, but of course the difference is going to be that we will no longer have any direct influence into the formation of that EU jurisprudence because we ourselves will no longer be appearing in front of the ECJ as an EU member.”
But former Cabinet minister and Leave campaigner Theresa Villiers said: “If we are to implement the Leave vote and respect the result of the referendum and take back control over making our own laws, we have to leave the jurisdiction of the ECJ.”
Speaking ahead of the publication of the DExEU document, a Government spokesman said: “We have long been clear that in leaving the EU we will bring an end to the direct jurisdiction of the Court of Justice of the European Union in the UK.
“It is in the interests of both the UK and the EU, and of our citizens and businesses, that the rights and obligations agreed between us can be relied upon and enforced in appropriate ways.
“It is also in everyone’s interest that, where disputes arise between the UK and the EU on the application or interpretation of these obligations, those disputes can be resolved efficiently and effectively.”