‘The ECJ will be a totally FOREIGN court but it will rule over Britain under Brexit deal’
PRIME Minister Theresa May’s Brexit divorce deal will mean the UK will STILL be subject to rulings from the European Court of Justice (ECJ) – while a supposedly independent arbitration panel would be little more than a nodding dog to Brussels, a top British barrister has said.
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Martin Howe made his remarks in a strident column in The Sun, during which he lamented the fact that the formal withdrawal document contained a commitment allowing the Luxembourg-based ECJ “wide-ranging” jurisdiction over Britain, both during the transition period and afterwards. He wrote: “Once we leave the EU, the ECJ will become an entirely foreign court. So why should the ECJ’s writ still run?”
He pointed out that sovereign states very rarely if ever agreed be bound by the courts of another treaty party, and was at a loss as to why such circumstances should apply in the case of the UK and the EU.
Mr Howe, who specialises in EU law, was also sceptical about the mechanism proposed to solve disputes.
He said: “A supposedly neutral “arbitration panel” has been set up to decide general disputes between the UK and EU.”
However, he pointed out disputed questions of EU law would be decided by the ECJ – with the panel will be bound by the ECJ ruling.
He added: “So the “independent” panel will simply act as a postbox for sending the dispute to the ECJ.
“And as a rubber stamp when the answer comes back.”
Mr Howe cited Carl Baudenbacher, former president of the Court of Justice of the European Free Trad Association States, who has also voiced doubts about the independence of such a panel.
Speaking in March, Mr Baudenbacher warned: “It is in my view unlikely that the EU institutions and in particular the ECJ will agree to an arbitration model that is more favourable to the UK than the Ukraine model is to Ukraine.
“This means that in all important cases, the ECJ, ie, the court of the other side, would take the binding decision.”
Tory MP Sheryll Murray voiced her concerns about retaining links with the ECJ in April, saying: “At the end of the day, we voted for sovereignty to be restored to Westminster, and that's what we should deliver.
“If the ECJ has any involvement whatsoever in this country after we have served our notice under Article 50, that would be a betrayal of the referendum result.”
Speaking on Sky News Sky News last month, anchor Niall Patterson clashed with Labour’s Barry Gardiner after he dismissed concerns about the ECJ’s ongoing role in British justice.
Mr Patterson responded after Mr Gardiner suggested the ECJ was a simply a fair administrator for settling disputes.
The journalist said: “There is a difference to paying heed to the ECJ and being bound by it. This is not what Brexit meant.
"The ECJ is rather more than a simple administrative tribunal body.
“I mean it is an EU legal authority superior to the Supreme Court!
“You can't have that with power over us in Brexit."