“Taking Back Control”: Reality or Illusion For Post-Brexit Britain?

What’s the difference between the European Court of Human Rights (EctHR) and the European Court of Justice (ECJ)? As the “Politico” analysts, Annabelle Dickson and Quentin Aries, have pointed out, many people are confused about the distinction between these two organisations and hardline “Brexiteers” instinctively dislike them both because they have “Europe” in their titles. The ECtHR was set up in Strasbourg, France, in 1959 under a Convention drafted mainly (affirms the “Law & Religion” website) by British lawyers “ to monitor respect for the rule of law and human rights” and is completely separate from the European Union. Dickson and Aries have noted that several unpopular judgements issued by the ECtHR (such as allowing prisoners the right to vote and making it harder for British politicians to deport terrorist suspects) have been wrongly attributed to the ECJ, which was established in 1952 and is based in Luxembourg.

Among the ECJ’s principal roles, highlighted by the BBC News commentator, Chris Morris, are: Deciding whether the institutions of the EU are acting legally, settling disputes between them and ensuring that the member states of the EU are complying with their legal obligations as specified in the EU treaties. “Taken altogether, this means that the ECJ interprets and enforces the rules of the single market and pretty much everything that the EU does”.

Which is precisely why, according to Dickson and Aries, “some Brits hate the ECJ” and are determined to “take back control” from Europe’s highest court. They quote the view of the Conservative MP, Peter Bone, that during the Referendum of 2016 it became clear that British people “want our Parliament, not foreign courts, to make and interpret our laws”. By contrast, the former Labour Home Secretary, Charles Clarke, believes that 95% of British people “don’t give a toss about the ECJ and 75% haven’t the slightest idea what it is”.

During the referendum campaign, Michael Gove, currently Environmental Secretary and a supporter of the deal with Brussels that Prime Minister Theresa May has been trying to push through the UK Parliament, declared that “it’s hard to overstate the degree to which the EU is a constraint on ministers’ ability to do the things they were elected to do. Your Government is not, ultimately, in control of hundreds of areas that matter”.

Holger Hestermeyer, an expert in international dispute resolution at Kings College London, meanwhile considers that “The UK’s particularly strong aversion to the ECJ stems from the fact that, whereas most other EU countries have codified law systems, Britain’s common law has been developed by judges in court, applying statute, precedent and case-by-case reasoning”.

The “Spectator” columnist, James Forsyth, agrees with Hestermeyer that “the most important UK constitutional doctrine is sovereignty of Parliament”. This definition, he emphasized in the magazine’s December edition, has always rested uncomfortably with EU membership: “If Parliament can do what it wants, why could it not do something that goes against EU rules?”. An anonymous British official has complained to Politico that the EU’s demands regarding the ECJ represent an ‘unprecedented’ attempt to impose a foreign court’s will on a third country and could be construed as a form of “judicial imperialism”.

So, asks the BBC’s Chris Morris, is it possible for the UK to achieve a “clean break” and get rid of the ECJ entirely? Not for quite some time after Brexit, he concludes, if Britain wants to negotiate a period of transition and smooth the path towards a full exit from the EU. Moreover, if the UK wishes to stay in the European Air Safety Agency, or the European Arrest Warrant, or the European Medicines Agencies or any number of other bodies that regulate various aspects of our lives, it will have to accept that the ECJ will have a role to play in UK affairs”.

For sure, asserts the Queen Mary University of London law lecturer, Davor Jancic, on lse.ac.uk/brexit, the ECJ isn’t just going to go away and it’s likely to rule on any future UK-EU trade agreement: “Even in the hardest possible Brexit scenario, ECJ case law will continue to matter because for UK businesses to sell their products and services in the EU single market, they will have to respect the standards set by the ECJ. This operates as a permanent limit to the control that Britain can take back and the degree of sovereignty it can restore”.

The eminent barrister, Martin Howe QC, writing in the Spectator, has described the Prime Minister’s Brexit plan as “atrocious”. The transition period, he insists, could run indefinitely, thereby prolonging uncertainty about the future: “During all this time, we would be bound by EU law and by whatever quotas and rules Brussels decides to impose on us; our  fishing industry, for example, would be subject to EU boats in our waters. We would be throwing away in advance our two strongest negotiation cards: The £39 billion that the EU insists we should pay and future access to our market for EU goods”. Why, he queries, is the Prime Minister “so desperate for a deal that she is willing to humiliate her country in this way?”

Filed under: Politics | Posted on January 6th, 2019 by Colin D Gordon

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