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Analysis

May is breaking promise to take back control of our laws

by Sam Ashworth-Hayes | 13.07.2018

Theresa May says in her new White Paper we will “take back control” of our laws as we end the jurisdiction of the European Court of Justice (ECJ). Our laws will be “passed by those they elect and enforced by UK courts”.

This is almost precisely the opposite of what’s happening. The new proposal will see a continued and significant role for the ECJ in the UK, through a common dispute resolution mechanism.

May plans to commit to “ongoing harmonisation” with EU rules on goods. Although our Parliament will pass the laws, they will be written in Brussels without any British vote on the matter. So far, so bad.

But what happens when Britain and the EU can’t agree on how the rules should be interpreted? In the first instance, a Joint Committee of EU and UK officials would get together and attempt to thrash out an agreement. If they can’t agree, the dispute could be referred to “binding” independent arbitration.

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If both parties in the Joint Committee agree – or the arbitration panel decides to do so – questions of EU law could be referred to the ECJ for a decision on interpretation (see page 93). “The Joint Committee or arbitration panel would have to resolve the dispute in a way that was consistent with this interpretation.”

The White Paper also proposes a “commitment that UK courts would pay due regard to EU case law” when we are following EU rules. Combined with the fact that disputes could end up being referred to the ECJ for its interpretation, this could amount to accepting its case law as binding on the UK, according to Martin Howe, one of the Brexiters’ favourite lawyers.

After all, when UK courts disagree with EU case law, we would end up headed for dispute resolution by binding arbitration or joint committee. To the extent that the differing decisions reflected differing interpretations, a referral to the ECJ would inevitably see the EU court’s interpretation prevail. In turn, this would mean there would be little point in a UK court diverging from EU case law.

If the UK did not comply, the White Paper proposes we could be punished. Fines, or the suspension of parts of the agreement, are two potential penalties it lists. In other words, not only are we promising to follow EU rules without a say, and follow the ECJ’s interpretation of those rules without a judge on the court, we’re handing Brussels a big stick with which to whack us if we fall out of line.

Did somebody say “take back control”?

Edited by Hugo Dixon

3 Responses to “May is breaking promise to take back control of our laws”

  • Too bad DD has gone. Being ex military he would understand the command ‘about face!’ If he is still on speaking terms with May now is the time to explain this simple command and what it means.

  • INFACTS, whose side are you on ?

    I thought you wanted to stop Brexit, well, this proposal is the nearest thing to staying in you’re going to get. Sure, it needs some work but it is a start and shows the willingness to compromise which is vital to end up with a fair deal.

  • John Morrison has a good point. Of course May’s plan is not feasible but if we start rubbishing things like submission to the ECJ do we really think this will encourage people to swing towards remaining in the EU and totally accepting the ECJ?
    We must be very careful as to how we play this now. Crashing out with no deal is still possible.