The European Court of Justice could continue to exercise jurisdiction over UK law during the transition to Brexit, under the terms of a new position paper published by the Government.
And any new dispute resolution mechanism created to adjudicate on post-Brexit rows between the UK and EU could be required to take account of, or even be bound by, the rulings of the Luxembourg-based court.
The paper released by David Davis’s Department for Exiting the EU (DExEU) ruled out any direct ECJ jurisdiction over UK law following Brexit, which ministers branded unnecessary, inappropriate and unprecedented.
It said that legal disputes involving individuals and businesses should in future be decided within the UK judicial system, with the Supreme Court as the final arbiter.
And it said a new dispute resolution mechanism – which could involve a joint committee or arbitration panel – will have to be created to deal with disagreements over the interpretation and application of the Brexit deal. The mechanism could be triggered if either side believes the other is failing to implement the terms of the agreement or has introduced legislation which breaches it.
But the DExEU document did not rule out the ECJ maintaining its authority during the transitional period which is expected to last a number of years after the March 2019 deadline for Brexit, saying only that Britain will “work with the EU” on the design of interim judicial arrangements.
And it set out a range of existing arrangements involving the ECJ which could act as possible models for the new mechanism.
These include the EU’s agreement with European Free Trade Association (Efta) states like Norway and Iceland, which demands that “due account” be paid to the court’s rulings, and a treaty with Moldova which requires an arbitration panel to be bound by its interpretation of EU law.
The DExEU document makes clear that Britain is not committed to following any of these existing models. But it does not explicitly rule out any scenario other than direct ECJ jurisdiction.
Speaking shortly before the paper’s publication, Prime Minister Theresa May insisted that the UK would “take back control” of its laws after Brexit.
“What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European Court of Justice,” she said during a visit to Guildford in Surrey. “What we will be able to do is to make our own laws.
“Parliament will make our laws. It is British judges who will interpret those laws and it will be the British Supreme Court that will be the arbiter of those laws.”
The DExEU document states that Britain’s aim is to “maximise certainty” for individuals and businesses and to ensure that they can “effectively enforce their rights in a timely way”, while respecting the autonomy of UK and EU legal systems.