In her speech at Lancaster House on January 17, Theresa May, attempted to unravel her infamous maxim “Brexit means Brexit”. While there are still many unanswered questions about the UK’s negotiating strategy, one aim is clear: the prime minister intends to remove the UK from the European Court of Justice (ECJ). May said:
We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
But what does this mean for British citizens?
The role of the European Court of Justice
The ECJ, which is based in Luxembourg, has two main roles: one, interpretation of EU law at the request of the national courts; and two, as a forum to resolve disputes between the parties of the EU, including its member states and institutions.
When the ECJ acts in its dispute resolution role, it enforces compliance with EU law. A recent example in which the UK was at the receiving end of this was a case in which the UK was sanctioned for restricting the right of taxpayers to recover taxes levied in breach of EU law. The actual infringement was a discriminatory corporate tax for corporations whose parent company was not UK-domiciled. Following this, the UK government had to refund those taxes.
That said, the ECJ has also upheld the arguments of the UK government against allegations of infringement. For example, in a 2016 case the court ruled that the UK government did not break EU law by demanding that somebody who wanted to access social benefits in the UK should be required to prove their legal residence in the country.
But it’s likely that when May said leaving the ECJ would mean taking “control of our laws” she was referring to the court’s interpretative rulings. A few famous examples of rulings of this kind relating to Britain were the Jet2 ruling – which means that airlines are now liable for compensation claims for flights delayed by technical problems – and a case against Google which enshrined the right to be forgotten on the internet.
No less controversial was a case regarding sick leave, which now means anybody who falls sick during annual leave has the right to additional days off.
In all of these cases it is important to recognise that the ECJ is not a Supreme Court of Europe and it is not a court above the UK courts. Its jurisdiction has always been understood as parallel to national courts since its role is the interpretation of EU law, not to create it. EU laws are created by the EU parliament, with democratically elected representatives from across the member states, and the Council of the EU, formed by government ministers of the EU. It is for the national courts to decide on the correct application of the law to the case.
The impact for British citizens
The main consequence for EU citizens from the UK’s removal of the ECJ is that those parts of EU law still in force in the UK will be interpreted only by the UK courts. Residents in the UK will not have the option of requesting that the ECJ explains the correct interpretation of that law and will not be entitled to expect that the ECJ enforces that interpretation either.
On the future of existing EU laws within Britain, May said: “We will convert the ‘acquis’ – the body of existing EU law – into British law.” The prime minister is effectively accepting that existing EU law is enforceable in the UK until it is replaced, presumably by parliament.
However, not everyone accepts that May wants parliament to intervene here – such as legal scholar Steve Peers who considered in detail the particulars of the planned Great Repeal Act to revoke the European Communities Act 1972.
I understand from May’s statement that the government is actually more in favour of a “great ratification” act. This will be rather complex since the UK has an opt-out right on legislation related to justice and home office affairs, meaning there will be a considerable amount of cherry-picking of EU legislation that will be incorporated into UK law. Either way, considering that EU law has been applicable in the UK since the enforcement of the European Communities Act, the wisest course of action is to approve the law that is to remain and then modify as necessary afterwards.
Loss of British input
The ECJ judges are European in the true sense of the word, which of course includes UK judges. Previous ECJ judges from the UK – including Alexander Mackenzie Stuart, Gordon Slynn and Eleanor Sharpston – have made very important contributions to the development of EU law. The important thing here is that the ECJ has been quite successful in balancing the legal traditions and perceptions across Europe. Without the UK, that balance will be lost.
The harmonisation of law across Europe has not harmed the UK, but rather has been aimed at promoting trade and international relations within the bloc. The role of the ECJ in that legal development has been outstanding. Leaving the court will also reduce the input of British legal minds into the development of EU law in the future as it continues to develop the scope of the European trade area.
So, while for the average citizen, the impact of not having the jurisdiction of the ECJ may not be obvious, it means that they will not have the possibility of enforcing the rights granted by EU law beyond the UK courts. And the jurisdiction of the ECJ has been used frequently by the UK courts.