European judges would struggle to be neutral in disputes after Brexit and must not be given the final say over the withdrawal agreement, an independent think tank has warned.
Accepting demands from Brussels to give the European Court of Justice (ECJ) oversight would not be in Britain’s interest because it is a “jealous guardian” of its monopoly on how laws are interpreted, the Institute for Government (IfG) said.
But trying to insulate the UK from any legal influence could lead to a failure to strike a deal, according to its report.
It states: “Accepting the EU’s proposals on the ECJ would not be in UK interests. As one of the EU’s own institutions, the ECJ would struggle to be neutral in any dispute between the UK and the EU after Brexit.”
How wrangles over citizens’ rights, trade disputes under any future deal and investment disagreements will be dealt with legally after Britain’s exit are at the centre of the stalemate in negotiations.
Prime Minister Theresa May has insisted the ECJ’s “direct jurisdiction” must end when Britain leaves the bloc but the EU wants ECJ oversight over the withdrawal agreement.
Including British judges in the European Free Trade Association (EFTA) Court, which covers non-EU states Iceland, Liechtenstein and Norway in their dealings with the single market, would allow the UK to leave the single market but would mean accepting some influence from the ECJ, the report said.
It called for the Government to accept the EFTA model or put forward proposals for an inventive and untested new dispute resolution system.
Report author Raphael Hogarth said: “The ECJ is a jealous guardian of its monopoly on the interpretation of EU law. Since citizens’ rights, the divorce bill and any transitional arrangements will all be rooted in EU law, UK and EU negotiators are constrained in terms of what dispute resolution mechanism they can dream up for the withdrawal agreement. The ECJ will throw out anything which, in its view, threatens the EU’s legal autonomy.”
A UK-only version of the EFTA court could work legally but would be politically unacceptable in Brussels, according to the IfG.
An “arbitration arrangement” floated by Brexit Secretary David Davis would be a legal and political “minefield” for the withdrawal deal and a joint court is likely to be rejected, it said.
Jill Rutter, IfG Brexit programme director, said: “The deeper the Government wants the future partnership deal with the EU to be, the more it needs an effective dispute prevention and resolution mechanism. But this could be perceived as limiting the extent to which we have taken back control of laws.”