The Leave campaign promised that Brexit would result in taking back control from Europe and the UK would be finally free to define its own borders and laws and be accountable for its own financial obligations. This meant that the UK would leave the single market and customs union, control immigration and break from the bonds of the European Court of Justice (ECJ), the court that oversees EU law. However, today’s release of the government’s position on the future legal relationship between Britain and the EU shows a radical change and reveals that the ECJ would still have some role to play in the UK, albeit “indirectly.”

For many Brexiters and Eurosceptics, Brexit meant the end of the European Court of Justice and its involvement in our domestic legal system. The ECJ was the symbol of European authority and unless we overthrew its authority, we would never be able to gain back our autonomy and freedom. 

Many of the Brexiters’ wishes were faithfully defended by Theresa May. Her promises to stop payments to the EU budget, control immigration and abandon the single market enabled her to appeal to hardcore Tory backbenchers and Brexiters alike. 

In October 2016, at the Conservative party’s conference, Theresa May clearly stated that Brexit meant that “We are not leaving only to return to the jurisdiction of the European Court of Justice. That is not going to happen.” And in her Lancaster speech, she pledged that “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.”

But appeasing hardcore Brexiters has never been May’s only problem. With increasing criticism from legal authorities and parties about how simplistic the view that the UK can escape ECJ jurisdiction is, and businesses’ demands to avoid a hard Brexit and lose single market access, May is facing some difficult challenges. 

Her promise that the UK would be a sovereign and independent country after Brexit has been criticised by pro-EU supporters who are arguing that such a task would be impossible, and that new courts would have to be put in place for all sorts of areas such as trade, security and citizens’ rights. Others warned the government that the insistence on completely cutting all links to the ECJ meant that securing any deal with the EU would become a precarious and risky process. 

How difficult is to break away from the ECJ?

The last two weeks saw the release of a series of Brexit papers outlining the government’s position but, which have created many questions about the complexities and difficulties of successfully reaching these desired results. Leaving the single market and the customs union, avoiding a hard border between Northern Ireland and the Republic of Ireland and terminating the so-called and ambiguous “direct” jurisdiction of the European court in the UK are all easier said than done. The last point of contention, is how UK Brexit negotiators hope to oppose the supremacy of EU law but can accept its “indirect” role in “meddling” with UK law. 

Sir Paul Jenkins, a government senior legal official from 2006 to 2014, told the Observer that Theresa May’s Brexit strategy and claim that the UK can throw away all European laws while benefitting from the single market is simply “foolish.” Jenkins said: 

If the UK is to be part of something close enough to a customs union or the single market to remove the need for hard borders, it will only work if the rules are identical to the EU’s own internal rules. Not only must they be the same but there must be consistent policing of those rules. If Theresa May’s red line means we cannot be tied to the ECJ, the Brexit treaty will need to provide a parallel policing system. That may be a new court but, in reality, any new court will have to follow what the ECJ says about the EU’s own rules, otherwise the new system won’t work. So, never mind Theresa May’s foolish red line; we will have the ECJ in all but name.

Many other legal experts have also agreed that to escape the EU’s jurisdiction would be an impossible task. Catherine Barnard, professor of EU law at Trinity College, said that this won’t be easy or possible. Breaking away from the court would mean that the UK would no longer have a representative judge in the court and thus it would lose its influence. As she wrote in the Guardian: “any future ECJ judgments will be drafted without the benefit of British judges sitting on the bench and without the benefit of hearing British lawyers arguing the case. Careful study of past ECJ decisions clearly shows the UK has punched above its weight in getting its points across. Such influence will be surrendered as Brexit becomes reality. But escaping the ECJ’s jurisdiction may be neither easy nor, in fact possible.”

Things get more complicated: U-turn over ECJ

With the release of the latest Brexit paper which appears to insinuate that the European Court of Justice would be able to influence UK law indirectly after the UK leaves the EU in March 2019, the situation gets a bit more complicated. Now, May is facing condemnation about another U-turn. A UK government spokesperson said that “we will bring an end to the direct jurisdiction of the court of justice of the European Union in the UK.” This has attracted Labour’s Brexit secretary Keir Starmer’s criticism who said: “The repeated reference to ending the ‘direct jurisdiction’ of the ECJ is potentially significant. This appears to contradict the red line laid out in the prime minister’s Lancaster House speech and the government’s white paper, which stated there could be no future role of the ECJ and that all laws will be interpreted by judges in this country.”

Vince Cable, the Liberal Democrat leader said, sarcastically: “We welcome this sensible and long overdue climbdown by the prime minister. It shows Theresa May’s red lines are becoming more blurred by the day.”

Wednesday’s paper, explains that the positions it states are hypothetical, and that a possible scenario would be the replacement of the ECJ’s direct authority by a new court which Europe would be able to control indirectly. It seems that the UK government envisions that after Brexit, individual disputes will be dealt by UK courts, while government ones by the new court. It is also now confirmed that the UK is willing to accept the ECJ’s direct authority during the transition period after March 2019, while negotiating a new trade agreement.

The change of the government’s position is perhaps inevitable in order to secure the smooth progress of the negotiations with the EU. Today’s paper was not only criticised, but also welcomed as a positive step forward for the government, a sign of the UK and EU’s future cooperation. The government’s softer Brexit position on the EU court might be upsetting to Eurosceptics and hard Brexiters, but the need to proceed with realistic goals is more important than simplistic promises.