Theresa May’s not-so-red line on the European Court

Judging by Brexiteers’ relaxed response, the prime minister found a way to ‘take back control’ while allowing for some ECJ influence.

LONDON — It was the Brexit red line that wasn’t so red after all.

The U.K.’s latest hotly anticipated Brexit position paper clarifies that while the Brits will indeed leave the direct jurisdiction of the European Court of Justice, the mantra of “taking control of our laws” does not mean a refusal to let the Luxembourg court influence British law via, say, legal precedent, or the dispute resolution mechanism that will be needed to govern a new trading relationship.

If a Brexit deal was ever going to be remotely possible, this was something the U.K. had to make clear.

In doing so, Prime Minister Theresa May risked a political showdown with Brexit hard-liners in her own party, many of whom put sovereignty above all else. On the day, she emerged unscathed.

“The clear principle is one I am very happy with and then we are trying to look at the details,” Conservative MP Jacob Rees-Mogg, a prominent supporter of Brexit and a sovereignty hawk, told POLITICO. “The ECJ goes from being the supreme court of the United Kingdom to being [just] another foreign court and that is a really important change.”

The government’s domestic critics from the “soft Brexit” camp were also happy, with Labour and the Liberal Democrats hailing it as a “climbdown” that would help build a fruitful trading relationship.

Despite May’s attempts to give the impression that nothing has changed, her government’s position has shifted. The position paper also acknowledged that an interim legal arrangement would be required, and did not rule out the direct jurisdiction of the ECJ for the duration.

Key word: Direct

The cautious welcome for the position paper among hard Brexit Tories was, according to one senior Conservative MP, a consequence of many of them not really understanding what they were asking for with the ECJ red line.

“The paper is, at long last, an admission of what has been concealed for 12 months — which is that the European Union is going to continue to have a profound influence over our laws,” said the MP, speaking on condition of anonymity.

“The problem is, a lot of people don’t really understand what the ECJ does … This has always been the key problem, so as a consequence people keep on saying: ‘We must escape the jurisdiction of the ECJ!’ — what they actually mean by that is direct effect [of ECJ law].”

A shift in government rhetoric in recent months has seen that caveat — “direct” jurisdiction — added to pronouncements on cutting ties with the ECJ.

But David Jones, a former minister at the Department for Exiting the European Union, told POLITICO there had not “in any way at all” been a climbdown. Like fellow Brexiteers, he had a relaxed response to the position paper.

“It’s absolutely clear that the U.K. will not be subject to ECJ jurisdiction once we’ve left the EU. But we are neighbors, we are going to be — hopefully — partners and we’re going to have to have some means of ensuring uniformity,” he said.

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The Brexiteers’ responses suggest a degree of coordination and an inclination to help the government rather than cause May a headache.

Tory MPs have been taking their cues from members of the government who backed the Leave campaign. Justice Minister Dominic Raab struck an emollient tone, criticizing “jingoistic” attacks on “foreign courts and foreign judges” in an interview on BBC Radio 4’s Today program on Wednesday. He added that the U.K. would want to keep “half an eye” on European law after Brexit.

His interview won praise on a WhatsApp group of pro-Brexit MPs in the European Research Group, according to one of its members.

Multiple choice

What the position paper did not make clear was precisely what the U.K. wants in its future relationship. Instead, it set out a range of precedents of international deals “where the EU has reached agreements with third countries which provide for a close cooperative relationship without the Court of Justice of the European Union [CJEU] having direct jurisdiction over those countries.”

In terms of a dispute resolution mechanism, there was a dizzying array of precedents, from the EFTA (European Free Trade Association) court, which must “pay due account” to ECJ decisions; the “Joint Committee” that resolves disputes within the European Economic Area trade agreement; monitoring arrangements like those that ensure non-EU Schengen members Norway and Iceland regularly review EU case law; and finally, arbitration panels that can refer disputes to the ECJ, which is the arrangement between Moldova and the EU.

On the enforcement of legal agreements, U.K. officials had condemned the EU’s “judicial imperialism” at the last round of Brexit talks, in the face of the European Commission’s insistence that it should be the ECJ that enforces the rights of EU citizens in the U.K. after Brexit.

Britain’s position is that EU citizens and businesses in the U.K. will have recourse to British courts, which ministers insist will enforce the terms of any Brexit agreement just as stringently as the ECJ would be expected to within the EU.

‘Worst of all worlds’

None of the precedents set out is an exact model for what the U.K. wants, officials said.

“The purpose of our paper is to show that we have thought about what [a dispute resolution mechanism] might be,” May told Sky News during a visit to a factory in Surrey. “We’ll now obviously go into negotiations with the European Commission to discuss what is the best way forward.”

But the very act of including such precedents represents a recognition that to achieve the free-trade arrangement it wants, the U.K. will have to pay close attention to ECJ rulings that govern the rules of the single market.

Taking into account last week’s position papers on customs and Northern Ireland, both of which presented suggestions for close alignment with EU rules and emphasized the importance of a transition, the government’s overall Brexit stance now looks far softer than it did prior to June’s general election.

Advocates of a soft Brexit questioned whether it would not have been more straightforward simply to propose staying in the single market.

“This is a climbdown camouflaged in jingoistic rhetoric. Even if we leave the single market, European judges will still have considerable power over decisions made in the U.K.,” said the Labour peer and former Cabinet minister Andrew Adonis, speaking on behalf of the pro-EU, cross-party Open Britain group.

“It would make far more sense for the government to negotiate continued membership of the customs union and single market. Otherwise, we get the worst of all worlds — a worse deal on trade and jobs than now, yet no extra control over anything for real.”