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Why Britain’s Brexit white paper could fail to please anyone

Brexit means replacing a court of law with a chit chat? EPA

As Britain gears up to leave the European Union, one of the biggest questions is how to grant those who supported Brexit their wish for full sovereignty from the European institutions they see as meddling in national affairs.

Unfortunately, the government’s white paper, detailing its plans on this and many other Brexit matters, was clearly quite rushed. It contained several typos, including the hilarious assertion that Britons currently enjoy 14 weeks paid leave per year. The timestamp also indicates it was finished at 4.17am the morning of publication.

But it’s worth having a look at one section of the document in particular. Part two makes it clear that one of the crucial aims of Brexit is to “bring an end to the jurisdiction in the UK of the Court of Justice of the European Union (CJEU)”.

The CJEU and arguments about sovereignty

The CJEU is the main court of the European Union. Judges are appointed by each member state and, together, give the final binding interpretations of EU law, enforceable at a national level. Member states can bring cases against EU institutions and vice versa. Most importantly, individual citizens and businesses can rely on EU law in front of national courts, with any subsequent questions of interpretation being referred to the CJEU. There have been fierce disagreements between UK courts and the European court over its power as it technically has competence over UK courts in the interpretation of EU law.

The famous Court of Appeal judge Alfred Denning originally described EU law in the 1970s as an “incoming tide … that cannot be held back”. And indeed, the increasing power of the court became a focal point for Brexiteers in the 1990s and 2000s. In 2014 the court ruled that Britain could no longer opt out of Europe’s Charter of Fundamental Rights, which was particularly irksome to some. The Daily Telegraph described the move as a “threat to national sovereignty”, claiming that Europe was trying to dictate human rights regulations to member states, undermining parliamentary supremacy in the UK.

Even though the UK is now leaving the EU, the issue is far from resolved. The main problem is that the CJEU is vital for solving interstate disputes between EU members and interpreting EU law. It’s a vital part of any trade deal.

To get round this, the white paper suggests a series of dispute resolution mechanisms to replace the functioning court system. It includes a proposal to replace binding decisions from the court with governmental discussions to “ensure that all parties share a single understanding of an agreement”.

Rather than using courts, there would be agreed arbitration panels where issues are merely discussed in an attempt to reach a conclusion. The similarities between these suggestions and what was being proposed under the Transatlantic Trade and Investment Partnership, much maligned by the Leave side during the referendum, is an irony apparently lost on the government.

David Davis has a plan, based on a good feeling. EPA

In putting these suggestions together, the government appears to have intentionally omitted any suggestion of a mechanism for forcing a government to comply with the decisions made in these discussions. It wouldn’t have been too much of a stretch to do so, since such binding mechanisms do already exist for non EU-member states in their dealings with the EU, as well as in deals such as the North American Free Trade Agreement.

The proposals are also limited to states bringing challenges against one another – your average citizen or company is excluded from the process. Significantly, this would leave the British public entirely reliant on the government to uphold any rights they retain in the deal. For instance if you were a company trading with an EU state under this new deal and you ran into difficulties due to border charges you would not be able to take a case to court in your own right. You would need to hope that the UK government would bring it up at an interstate panel.

Will it please the leavers?

All this should all sound like music to Brexit ears. However, the white paper promises to maintain a majority of EU regulations in the Great Repeal Bill, and that these regulations will “continue to be interpreted in the same way”. This is presented as a pragmatic step to ease the transaction of the UK out of the EU, but has significant consequences for the relationship with the court. Continuing existing interpretations means continuing to follow the interpretations already laid down by the CJEU, which would thus continue to bind and influence UK law. Meanwhile alternative court systems such as the EFTA court of the European Economic Area (conveniently omitted from the white paper) tend to follow CJEU precedent to a large extent.

This means that the court’s significance would still loom large. This could be reconciled as a simply pragmatic move. But the white paper makes a revealing statement about the context of Brexit:

Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.

Legally this is something of a nonsense. Judges have been at pains to emphasise that there is nothing “which allows the European Court, or any other institution of the European Union, to touch or qualify the conditions of parliament’s legislative supremacy”. But the key is in the word “felt”. This is not something that can be legally analysed or quantified – it is down to a general “feeling” of how sovereign UK institutions seem to be.

This is an almost impossible test to meet and one that anyone can claim is being met or not being met. When for example a court says that the need to follow an interpretation of the CJEU in an employment case or a dispute between Romania and the UK is settled using EU law, why wouldn’t Nigel Farage stand up and yell that the UK still isn’t sovereign? This what the white paper masks – the government is trying to make frighteningly complex legal changes, many of which are not in its hands and subject to complex negotiations that are yet to happen. Meanwhile, it sets itself benchmarks for success that are essentially meaningless. All in all, it’s worth reading that part of the white paper again.

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