European judges would struggle to be neutral in disputes after Brexit and must not be given the final say over the withdrawal agreement, an independent think tank has warned.
Accepting demands from Brussels to give the European Court of Justice (ECJ) oversight would not be in Britain’s interest because it is a “jealous guardian” of its monopoly on how laws are interpreted, the Institute for Government (IfG) said.
But trying to insulate the UK from any legal influence could lead to a failure to strike a deal, according to its report.
It states: “Accepting the EU’s proposals on the ECJ would not be in UK interests. As one of the EU’s own institutions, the ECJ would struggle to be neutral in any dispute between the UK and the EU after Brexit.”
How wrangles over citizens’ rights, trade disputes under any future deal and investment disagreements will be dealt with legally after Britain’s exit are at the centre of the stalemate in negotiations.
Prime Minister Theresa May has insisted the ECJ’s “direct jurisdiction” must end when Britain leaves the bloc but the EU wants ECJ oversight over the withdrawal agreement.
Including British judges in the European Free Trade Association (EFTA) Court, which covers non-EU states Iceland, Liechtenstein and Norway in their dealings with the single market, would allow the UK to leave the single market but would mean accepting some influence from the ECJ, the report said.
It called for the Government to accept the EFTA model or put forward proposals for an inventive and untested new dispute resolution system.
Report author Raphael Hogarth said: “The ECJ is a jealous guardian of its monopoly on in the interpretation of EU law. Since citizens’ rights, the divorce bill and any transitional arrangements will all be rooted in EU law, UK and EU negotiators are constrained in terms of what dispute resolution mechanism they can dream up for the withdrawal agreement. The ECJ will throw out anything which, in its view, threatens the EU’s legal autonomy.”
A UK-only version of the EFTA court could work legally but would be politically unacceptable in Brussels, according to the IfG.
An “arbitration arrangement” floated by Brexit Secretary David Davis would be a legal and political “minefield” for the withdrawal deal and a joint court is likely to be rejected, it said.
Jill Rutter, IfG Brexit programme director, said: “The deeper the Government wants the future partnership deal with the EU to be, the more it needs an effective dispute prevention and resolution mechanism. But this could be perceived as limiting the extent to which we have taken back control of laws.”
Labour’s Ian Murray, who backs the Open Britain campaign for a soft Brexit, said: “This report shows how self-defeating the Government’s red line on the jurisdiction of the European Court of Justice is. No trade deal with the EU can possibly be agreed without some role for the ECJ. The Government’s red line is a recipe for a destructive, extreme Brexit with no deal at all.
“Eighteen months on since the referendum, ministers are still yet to propose any kind of viable model for disputes resolution between the UK and EU after Brexit. Such inaction simply isn’t good enough.
“It’s time for David Davis to come up with concrete proposals that will ensure we retain the ‘exact same benefits’ of trade with the EU as we have now, like he promised.”
A Government spokesman said: “As we leave the EU, we will bring an end to the direct jurisdiction of the European Court of Justice in the UK.”
“It is in everyone’s interest that where disputes arise between the UK and the EU, they can be resolved efficiently and effectively.”
“That’s why we published a paper setting out our approach to this in the summer.”
“As the Prime Minister made clear in her Florence speech, we are confident that we can find an agreed way to resolve disputes and will work creatively and imaginatively as we establish our new relationship with the EU.”