Comment

The European Court of Justice's authority must end if we are to take back control

Any oversight in relation to EU citizens could lead to a 'mission creep', Iain Duncan Smith warns
Any oversight in relation to EU citizens could lead to a 'mission creep', Iain Duncan Smith warns Credit: Paul Grover/The Telegraph

There has been much speculation this week about the scale of the financial settlement between the EU and the UK, after Brexit. Figures from £40bn to £50bn have been bandied about after quite deliberate leaks from the EU following further discussions.

In any case these overall figures comprise two elements – the money we would pay as a result of existing legal obligations, and the additional contribution that the UK would make during any implementation period of an arrangement on free trade.

But the payment of the second element must be contingent on two things. First, a deal that includes reciprocal free trade without tariffs or non-tariff barriers between the UK and the EU and leaves the UK free to implement global trade deals.

Second, and perhaps most important of all, it must be contingent on an end to the authority of the Court of Justice of the European Union, commonly known as the European Court of Justice (ECJ).

Most people who take an interest in the EU recognise that the single most important definition of taking back control is the moment we leave the authority of the ECJ.

For it is this court which has been the ever present ratchet of the concept of ever closer union. Judgment after judgment has redefined our relationship with the EU and, more often than not, widened the authority of the commission over nation states.

Yet even as we get ready to leave, the EU has insisted that the ECJ retains the right to rule on the rights of EU citizens in the UK after Brexit.

In fact, in May they made a declaration that they wanted continued application of Union law, on citizens’ rights, as well as application and interpretation of the other provisions of the Agreement, including the catch-all of authority to deal with unforeseen situations.

To do this, they demanded the jurisdiction of the ECJ should be maintained. This is the most preposterous claim.

The important question, however, is what the UK government’s response is. The Prime Minister has been robust on this point, saying that being beyond the authority of the ECJ was a red line.

However, reports emanating from "informed" sources worryingly now seem to indicate that the government is minded to grant at least some of what the EU demands, particularly on entry to and residence in the UK.

This would be quite unacceptable, as it would confound the PM’s red line and put the UK in the position of ceding power to a foreign court on which it has no representation to rule on those who would and should normally have their rights adjudicated by British courts.

For as the letter from Sir Richard Aikens, a distinguished former judge of appeal, puts it, to do this would in effect place the ECJ in a position of authority over UK courts as though we had never left the EU.

If true, then this would pose a serious problem, impinging on the UK’s sovereignty.  For even someone close to the court, a former ECJ judge, Franklin Dehousse, has dismissed such a proposal as meaning that the UK would become some kind of new 1930 Shanghai.

EU citizens, he said “will become some sort of a super-privileged caste in the future UK….where the EU citizens will benefit from multiple privileges…” These privileges, we should bear in mind, would not be available to British citizens resident in the UK.

Any oversight in relation to EU citizens could also lead to a mission creep in which the EU demands similar arrangements for legal disputes on trade and other areas.

This is surely not a state of affairs that should be allowed to exist. It has even been criticised by Dehousse, who said of the EU’s proposal, that it would, “lead to an incredible legal vipers nest.”

Furthermore during the implementation phase, the idea that the UK, once it had repealed the 1972 European Communities act putting it outside the EU, should calmly submit itself to the rulings of the ECJ would be unworkable.

If we are required to follow market rules or others such as banking rules, without a veto we could find ourselves being forced to implement damaging new regulations. 

The need for the government to agree to a court of arbitration to come into force as we leave is vital. That and not extending the authority of the ECJ is the right way to go and such proposals from the EU should be dismissed as a vain attempt treat the UK as a client state.

The Prime Minister was right in her Lancaster House speech to rule out such interference from the Commission or the court as we leave. After all when the British people voted to leave the EU they did so to take back control. That surely means an end to the authority of the ECJ once and for all. 

Iain Duncan Smith is MP for Chingford and Woodford Green and a former leader of the Conservative Party

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