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Brexit: No 'direct jurisdiction' for ECJ after Brexit, say ministers Brexit: UK must keep 'half an eye' on European court rulings
(35 minutes later)
The UK will no longer be under the "direct jurisdiction" of the European Court of Justice (ECJ) after Brexit, a government policy paper will say. The UK will have to keep "half an eye" on the rulings of the European Court of Justice (ECJ) after Brexit, a government minister has said.
Ministers will tell the EU it is "neither necessary nor appropriate" for the ECJ to police their relationship. Critics have accused the prime minister of a "climbdown" on her promise the UK would take back control of its laws when it left the EU, in March 2019.
Critics claimed a "climbdown" and that the word "direct" left room for the ECJ to still play a part. The government maintains the UK will no longer be under the "direct jurisdiction" of the ECJ.
But ministers said it simply meant UK and EU judges would keep "half an eye" on what each other was doing. But Justice Minister Dominic Raab has now said it will not be a clean break.
He told BBC Radio 4's Today programme: "Our commitment as a government since the referendum has been crystal clear - we're ending the jurisdiction of the European Court over disputes between the EU and the UK, that's not on the table.
"But look, let's also be clear about it - when we leave the EU, we are taking back control over our laws.
"There will be divergence between the case law of the EU and the UK, and it is precisely because there will be that divergence as we take back control that it makes sense for the UK to keep half an eye on the case law of the EU, and for the EU to keep half an eye on the case law of the UK."
The Luxembourg-based ECJ is in charge of ensuring member states abide by EU law.The Luxembourg-based ECJ is in charge of ensuring member states abide by EU law.
Its rulings are binding on all member states, and it also settles disputes between countries and EU institutions.Its rulings are binding on all member states, and it also settles disputes between countries and EU institutions.
Prime Minister Theresa May has repeatedly promised to take the UK out of its jurisdiction after Brexit. A paper being published by the government later on Wednesday will say it is not "necessary or appropriate" for the ECJ to have direct authority over UK law after Brexit, adding that it would be "unprecedented" for it to do so.
At her party's conference in October 2016, she said: "We are not leaving (the EU) only to return to the jurisdiction of the European Court of Justice. That is not going to happen." It will set out a range of alternative models for dealing with legal disputes with the EU - and argue that the UK is is in a "position of strength" to forge new arrangements suited to its own circumstances.
And in a keynote address on the EU in January this year she promised to "take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain".
However, the question of how future agreements between the UK and the EU will be enforced is proving contentious.
Direct or indirect?Direct or indirect?
Analysis by the BBC's Ross HawkinsAnalysis by the BBC's Ross Hawkins
Theresa May has promised - repeatedly - to simply leave the jurisdiction of the European Court of Justice.Theresa May has promised - repeatedly - to simply leave the jurisdiction of the European Court of Justice.
In this morning's briefing there's a subtle difference. The government will "build towards ending the direct jurisdiction" of the court.In this morning's briefing there's a subtle difference. The government will "build towards ending the direct jurisdiction" of the court.
Sources insist nothing has changed; the language has been used before. But what the word "direct" really means and how much say if any the ECJ will have in the UK after Brexit are now crucial questions.Sources insist nothing has changed; the language has been used before. But what the word "direct" really means and how much say if any the ECJ will have in the UK after Brexit are now crucial questions.
Or - to put them another way - are we really taking back as much control as leave voters hoped?Or - to put them another way - are we really taking back as much control as leave voters hoped?
The ECJ's remit extends into many of the areas where the UK is hoping to draw up new arrangements with the EU, including trade and citizens' rights.The ECJ's remit extends into many of the areas where the UK is hoping to draw up new arrangements with the EU, including trade and citizens' rights.
Speaking on BBC Radio 4's Today programme, Justice Minister Dominic Raab said "some form of arbitration" would be needed, but that this would not be akin to a European court. Mr Raab said "some form of arbitration" would be needed, but that this would not be akin to a European court.
Arbitration is where disputes are settled by a neutral third party. The UK and the EU could each appoint arbitrators and agree on a third, Mr Raab suggested.Arbitration is where disputes are settled by a neutral third party. The UK and the EU could each appoint arbitrators and agree on a third, Mr Raab suggested.
He said this was different to the UK accepting the jurisdiction of ECJ which would be "lopsided and partisan and that's not on the cards".He said this was different to the UK accepting the jurisdiction of ECJ which would be "lopsided and partisan and that's not on the cards".
Challenged on the inclusion of the word "direct", he said: "There will be no jurisdiction of the European Court any more than the UK Supreme Court over disputes between the UK and the EU, but as a voluntary matter of practice, totally within our control, of course the UK will keep half an eye on what the EU does, just as the EU will do, keep half an eye on what the UK does."
European Court of JusticeEuropean Court of Justice
Pro-EU campaigners say the government made an "appalling error" by making leaving the ECJ a "red line" in Brexit negotiations, saying new courts will now be needed in all the areas it extends to, including trade, citizens' rights and security.Pro-EU campaigners say the government made an "appalling error" by making leaving the ECJ a "red line" in Brexit negotiations, saying new courts will now be needed in all the areas it extends to, including trade, citizens' rights and security.
The pro-EU Open Britain group claimed a "climbdown" in the government's approach.The pro-EU Open Britain group claimed a "climbdown" in the government's approach.
Labour MP Chuka Umunna, speaking on behalf of the group, said: "Nothing the government says it wants to deliver from Brexit - be it on trade, citizens' rights, or judicial co-operation - can be achieved without a dispute resolution system involving some role for European judges."
Brexit Secretary David Davis has previously insisted the ECJ need not be involved in managing the UK's and the EU's future relationship.
"If Manchester United goes to play Real Madrid, they don't allow Real Madrid to nominate the referee," he said last month.
Wednesday's publication - the latest in a series of papers setting out the UK government's stance on key issues - will say there are a "variety of precedents for resolving disputes that may arise between the UK and the EU" without the ECJ having direct jurisdiction.
These will need to include the free trade deal the UK hopes to strike with the EU to replace its membership of the single market.
Red lines 'blurred'
Sir Keir Starmer, Labour's shadow Brexit secretary, said: "The prime minister's ideological insistence that there can be no future role whatsoever for the ECJ or any similar court-like body risks preventing the deal Britain needs."Sir Keir Starmer, Labour's shadow Brexit secretary, said: "The prime minister's ideological insistence that there can be no future role whatsoever for the ECJ or any similar court-like body risks preventing the deal Britain needs."
Liberal Democrat leader Vince Cable said Mrs May's "red lines are becoming more blurred by the day", saying the ECJ had "served Britain's interests well" and should not be "trashed".Liberal Democrat leader Vince Cable said Mrs May's "red lines are becoming more blurred by the day", saying the ECJ had "served Britain's interests well" and should not be "trashed".
The Institute of Directors called for "flexibility and pragmatism" when leaving the ECJ's jurisdiction.
"The emphasis here should be on ending its direct effect, not trying to throw off the influence of the court altogether," it said.
On Monday, the president of the court of the European Free Trade Area (Efta) - which governs Iceland, Liechtenstein and Norway's relationship with the single market - suggested his institution could be used.
But this could anger some Eurosceptic Conservative MPs, because the Efta court, also based in Luxembourg, tends to follow closely the ECJ with its rulings.
The ECJ has also emerged as the central stumbling block in reaching a deal on the rights of EU nationals after Brexit.
The EU side believes the ECJ should have a role in enforcing these rights - a proposal rejected by the UK.
The UK government said its paper on Wednesday would offer maximum certainty to businesses and individuals. It will also suggest that dispute resolution mechanisms could be tailored to the issue at stake in each agreement.