UK suggests options for enforcing UK-EU agreements post-Brexit
Some welcome realism in the UK’s latest paper as it puts forward alternatives to the European Court of Justice for enforcing future UK-EU agreements.
The government has published another ‘future partnership paper’ for its relationship with the EU post-Brexit. The paper looks at the issue of enforcement and dispute resolution over agreements (including the Withdrawal Agreement) made between the UK and EU. It makes clear the government’s position is the UK will no longer be in the “direct jurisdiction” of the European Court of Justice (ECJ) when it leaves the bloc.
In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union
Enforcement and dispute resolution, a future partnership paper by the UK government
However, this doesn’t mean the ECJ will have no influence over UK law. In the paper, the government recognises that whilst the ECJ is the “ultimate arbiter of EU law within the EU and its member states”, it would not necessarily have the “power to enforce and interpret international agreements between the EU and third countries”. The government suggests that for agreements between the UK and EU, this could, instead, be done by a separate body or a binding arbitration model, which would take into account UK law and EU law, which is interpreted by the ECJ.
The paper goes on to set out a number of options for this but doesn’t state a preference. It correctly notes the UK and EU will need to agree what approach or approaches to take with regard to any future agreements between the two sides.
The options include creating something similar to the EFTA (European Free Trade Association) court, which has jurisdiction over agreements made between EFTA states as well as in relation to the European Economic Area agreement, which covers the EU and several EFTA states (Norway, Iceland and Liechtenstein). Given the UK’s desire for a “deep and special partnership” with the EU, something similar to an EFTA court is what many consider as being the most likely outcome. But this will ultimately depend on the type of future relationship that is agreed.
The EU published a similar paper in July but it focused on governance over the Withdrawal Agreement and did not take into consideration options for what will govern any future agreements. The paper indicated the EU’s preference for the ECJ to enforce and interpret the Withdrawal Agreement. This is particularly with regard to citizens’ rights and the continued application of EU law should, for instance, the UK seek for transitional arrangements that includes the single market and/or customs union.
As such, the EU said the UK “should enjoy the same procedural rights as the rights enjoyed by Union Member States under the Statute and the Rules of Procedures of the Court of Justice”. So in their proposal, the UK would continue playing a role in the ECJ. The EU’s paper also proposes the creation of a Joint Committee for dispute resolution.
This is also one of the options put forward in the UK paper. And just as the UK does, the EU notes that both sides will need to negotiate what provisions there will be with regard to enforcement and dispute resolution between the two sides.
Looking at both papers, agreeing something suitable to both sides doesn’t seem impossible. Analysis from far more qualified people suggest the UK’s paper is reasonable and a good starting point for negotiations on the matter. Here’s a few Twitter threads and links that are worth a read (just click on a particular tweet to see the rest of the thread or link):
1. Some thoughts, for what they are worth, on the “relationship paper” published today on the jurisdiction of the ECJ.
— David Allen Green (@davidallengreen) 23 August 2017
1/ Some quick thoughts on the UK government paper. The first part is basically “no, no, no” (copyright Mrs Thatcher) to the ECJ post Brexit.
— Steve Peers (@StevePeers) 23 August 2017
Soft Brexiters and Remainers should welcome today’s position paper. It’s good stuff. https://t.co/MQCihQIfOH
— Ian Dunt (@IanDunt) 23 August 2017
— K A Armstrong (@ProfKAArmstrong) 23 August 2017
The next round of negotiations start next week. The EU has insisted talks on a future partnership cannot begin until “sufficient progress” has been made on the Withdrawal Agreement. Despite the UK accepting this at the start of negotiations, the government has been keen to push talks onto the future partnership earlier. And it has published several future partnership papers to support its case for doing so. However, issues relating to the future partnership are unlikely to make it onto the agenda… If the government really wants to get talks moved on, it will need to publish a position paper on the financial settlement, which the EU is still waiting for.
A very welcome outcome from the UK actually publishing position papers (including on the future partnership) is that it forces the government to face the realities of Brexit. There is less rhetoric and more realism. It's good for the British public too as it helps us understand the complexities of it all. We can probably thank the EU's insistence on transparency over the talks for this happening as I'm not convinced the government would have been so forthcoming otherwise. It's just a shame we didn't get more of this before the referendum or even in the immediate aftermath of it.