May’s obsession with ECJ over Brexit ‘daft’, says former senior judge – The Guardian
Professor Sir David Edward, a former judge at the European court of justice, said the government had made a mistake in making the ECJ a red line in Brexit negotiations.
“Of course it was daft, frankly. The court of justice is not this big bogeyman. Why has Theresa May got this obsession in her head? Partly because she doesn’t know the difference between the court of human rights [a non-EU body] and the court of justice [of the European Union].”
Speaking to the Guardian, he said May had failed to grasp the ECJ’s role in upholding EU single market rules – something her predecessor as prime minister, Margaret Thatcher, had understood.
“It is manifest [May] doesn’t understand the working of the court or of the single market. She does not totally accept the function of the court of justice, which Mrs Thatcher fully recognised, as the arbiter of the single market.”
The retired judge, now professor emeritus at Edinburgh university, said the government was “careering towards disaster if there is no agreement” on Brexit.
He was speaking before May’s election disaster left the government in chaos on the eve of Brexit negotiations. Meanwhile, the EU’s chief negotiator has urged the UK not to waste more valuable time in the “extraordinarily complex” talks. “I can’t negotiate with myself,” Michel Barnier told the Financial Times and other European newspapers.
The role of the European court of justice will be one of the first tough points that British negotiators will have to confront. EU negotiators are adamant the European court must have ultimate authority to settle post-Brexit disputes over money and rights of EU citizens living in the UK. In theory, this means the ECJ could play a role in Britain’s legal order for 100 years, as EU babies living in Britain today could take disputes to Luxembourg near the end of their lives.
At the Conservative party conference in October, the prime minister delighted Tory activists with her promise to remove the UK from the jurisdiction of the Luxembourg-based court – an idea that had until then not featured in her government’s public pronouncements on Brexit.
In contrast, Europe wants to protect the writ of the ECJ and supervisory role of the European commission over EU law, according to the EU negotiating text that was agreed last month. The text envisages a possible “alternative dispute settlement” for non-EU law problems, but only if it met ECJ standards of independence and impartiality.
Jonathan Portes, professor of public policy at King’s College London, said the “obvious answer” would be an independent tribunal, but this required compromise from both sides. “It would involve the UK accepting foreign judges and the EU accepting that the ECJ is not the ultimate arbiter.”
He said this would be an early test for the overall success of Brexit talks: “If both sides can do that, it will be a very good signal … if not the chances of getting a resolution on the substantially more difficult elements are close to zero.”
The central role for the ECJ has been endorsed by EU leaders, but there are dissenting voices. Belgian lawyer Franklin Dehousse, a former European judge who was an outspoken critic of ECJ reforms, has accused the EU of making demands on the UK not put on other countries.
Maintaining the ECJ’s jurisdiction to protect EU citizens after Brexit would create “an incredible legal viper’s nest” he wrote in a recent article for the Egmont Institute in Brussels. “The UK would then become the only third [ie foreign] state submitted to the full and direct jurisdiction of the ECJ … Such a state would thus be bound by decisions taken by a judicial authority where it is not represented and whose judges would be appointed by its potential opponents.”
Edward said the ECJ’s role was a matter for negotiation, but pointed out any bespoke court for the UK would have to be compatible with EU law. “You have to remember that the other side of the negotiation are bound to act in accordance with the law and the body that decides for them what the law is, is the court of justice.”
“The British have a total misunderstanding of what the rule of law means to the others. For the other countries the rule of law means acting in accordance with the founding statutes of their country (the constitution) or the treaties in the case of the EU.”
“You can ‘bespoke’ all you like, but there are limits to what you can agree.”
Edward also poured scorn on leave campaign claims that Brexit would enhance the sovereignty of parliament. He likened the government’s bill to convert EU law into domestic law to a power grab by the early modern monarch who dissolved parliament. “Just read the Brexit white paper, which would reduce the sovereignty of parliament to a rubber stamp. They want power for the government to alter statutes and that is Charles I.”