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Analysis

Brexit deal still hangs on cracking jurisdiction nut

by Nick Kent | 22.03.2018

Amidst all the hoo-ha about Theresa May’s transition deal – and the broader divorce agreement it is part of – it’s easy to forget that there’s no meeting of minds yet on how it will be overseen and policed. That could nix the whole pact.

International agreements often have some form of dispute settlement mechanism to ensure they run smoothly, accompanied by an enforcement procedure to make any settlement stick. Both the UK and the EU agree that such mechanisms will be needed after Brexit, but not about what form they should take. 

The UK’s position used to be straightforward: it wanted to end the European Court of Justice’s jurisdiction in the UK. That means the ECJ having no legal authority in the UK.

The EU’s position, in respect of the withdrawal agreement, is quite simply the opposite. It wants “to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union”.

Those conflicting positions have created a stalemate. You can see that in Article 4 of the draft withdrawal agreement. Most of this has not been agreed because the EU is saying that when its law applies in the UK, it must produce “the same legal effects as those which it produces within the Union”. It is calling on the UK to ensure compliance with this through primary legislation. That is a red flag to May’s red line.

As if that’s not bad enough, in Articles 153 and 162-165, the EU is calling for a host of other concessions over jurisdiction as well as over the sanctions that would apply if we don’t comply with the deal.

Blurred red line

Without an agreed mechanism for overseeing and policing the deal, the UK won’t get an agreement. That explains why the prime minister has been progressively blurring her red line. In its December deal with the EU, the government accepted that the UK courts will have to take account of ECJ decisions concerning citizens’ rights after Brexit. Furthermore, the European Commission will be able to intervene in cases before UK courts and tribunals and the UK government will be able to be heard in those before the ECJ.

May then conceded in her Munich security conference speech last month that, if the UK was allowed to continue to work with the EU’s crime and justice agencies, that would mean “the UK will respect the remit of the European Court of Justice” in that connection.  

May was even blunter in her Mansion House speech this month on our future economic relationship with the EU when she said that “even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us”, as they do the US and other countries. But when talking about the future relationship she still clung to the hope that the deal would “respect the sovereignty of both the UK and the EU’s legal orders”, whilst allowing for no jurisdiction of the Court in the UK.

All international negotiations are difficult and some founder because the parties involved can’t find a mechanism to settle any future disputes. This is technical stuff, but it is at the core of our negotiations with the EU. If we can’t agree on an effective mechanism, there won’t be any agreement at all.

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Edited by Hugo Dixon