European Law Monitor

Make your voice heard!

newsComment on the UK’s position paper on the jurisdiction of the ECJ

The UK government has consistently stated that when we leave we will leave the jurisdiction of the ECJ. Supporters of this view say that plenty of other countries who have trade deals with the EU don’t have to accept the jurisdiction of the ECJ. They argue that cases should be decided by British judges, and that a foreign court should not have the power to strike down laws passed by Parliament.

Any national court, from the Magistrates court to the Supreme Court, can give a ruling on a point of EU law without referring the case to the ECJ. Under the “Acte Clair” doctrine, if a point of EU law is really clear and obvious then there is no need to refer the case to the ECJ. However, if a national court is unsure how best to apply EU law in a specific case, and would like guidance from the ECJ on how to interpret the law, then they can choose to refer the case to the ECJ for what is known as a preliminary ruling, which is where the ECJ will give a ruling which the national court can then follow. One of the reasons that national courts are happy to make a reference for a preliminary ruling to the ECJ is that the ECJ has an unsurpassed knowledge of EU law, and most national court judges are not necessarily specialists in this area. Going forward, if it is no longer possible to refer cases to the ECJ, then
a) UK judges will need to substantially increase their knowledge of EU law.
b) There is a real risk of regulatory divergence between the rulings of the ECJ and the UK Courts, particularly over the longer term.

The other argument put forward is that a foreign court should not have the power to strike down laws passed by Parliament. First off, it is worth looking at the situation where this might arise. Where a Directive is agreed at EU level, it then has to be implemented at UK level, and this is usually done by passing either an Act of Parliament or a Statutory instrument which gives effect to the Directive. However, there are times when the implementing legislation does not actually conform to what was agreed in the Directive, either because of poor drafting or more commonly, because the government are trying to wriggle out of their legal obligations. In the event of a conflict between an EU law and a national law, you apply the parent Directive, as that is what you agreed to do as a legal obligation. In that situation, where a clear conflict arises between a Directive and a national law, then UK judges are required to disapply the national law and apply instead the provisions of the parent Directive. The law is not struck down by either the ECJ or by UK judges. Instead a “declaration of incompatibility” is issued, which alerts the government and Parliament that there is a problem with the way that law has been implemented. The implications of this can be far reaching. For example, under the E-Privacy Directive phone hacking is illegal - end of. This was implemented using the Regulation of Investigatory Powers Act which stated that phone hacking is ok if you think the other person would be ok with it (even if they weren't)

Personally, I have little issue with this. If one takes on legal obligations then I think it is reasonable to honour them. So, if at EU level, you have agreed to the provisions of a Directive then I see no problem in implementing that correctly and if you don’t then it is reasonable to fall back on what was originally agreed. It is not the case that the ECJ can wake up one morning and strike down without any justification, huge areas of the UK Statute book. That is just nonsense.

Finally, the other argument put forward for leaving the ECJ is that plenty of other countries have trade deals without having to accept the jurisdiction of the ECJ. That is perfectly true.

But the UK is not just looking for a trade deal. According to the White Paper it also wants to maintain the Open Skies policy, which allow companies like Easyjet and Flybe to provide low cost air travel across Europe. The UK also wants to maintain and develop further judicial cooperation in criminal matters, including having continued access to Europol, the Schengen Information System, the European Criminal Records Information System, the European Arrest Warrant and the Passenger Name Record. The importance of these systems was highlighted in the UK Governments White Paper, which said

  • the UK is one of the biggest contributors to Europol systems, supporting police forces across the UK and Europe in the fight against cross border crime
    the UK currently participates in all 13 of Europol’s current operational priority projects. We are driving, or co-driving, almost half of Europol projects against serious organised crime
  • from 2004 to 2015 we extradited over 8,000 individuals accused or convicted of a criminal offence to other EU countries using the European Arrest Warrant
    Schengen Information System II is a European-wide alerts system that includes alerts for wanted or suspected criminals. From April 2015 to April 2016, over 6,400 foreign alerts received hits in the UK, allowing UK enforcement agencies to take appropriate action, whilst over 6,600 UK-issued alerts received hits across Europe
  • the UK has been a leading proponent of the new EU Passenger Name Records rules, which mean information will soon be collected in all Member States that will make it harder for organised criminals and terrorists to hide their movements
  • the UK is the fourth largest user of European Criminal Records Information System (ECRIS). In 2015/16 the majority of the over 155,000 requests for overseas criminal convictions information were made to EU countries through ECRIS. EU Member States also benefit from notification messages we provide about their nationals who have been convicted in the UK, with the vast majority of the over 46,000 notifications made through ECRIS.

The problem with the governments position paper on the ECJ is it wants to have its cake and eat it. It wants continued access to all of these systems that benefit the UK. They are not part of trade but are instead some of the real benefits that you gain as an EU Member.  The EU’s open skies policy has benefited the UK economy and UK consumers enormously, as has the UK’s participation in science projects. Judicial cooperation in civil matters means that businesses and individuals can enforce their rights through mechanisms like the European Small Claims procedure.

However, one of the essential criteria if a country wants to participate in these systems, such as judicial cooperation in criminal matters, is that that country must accept the jurisdiction of the ECJ, and also EU data protection principles.

This means the government has to chose. It can go for a straight trade deal in which case it can withdraw from the jurisdiction of the ECJ, and pull out of judicial cooperation in criminal and civil matters, open skies, and Euratom.  However, by doing so, we would also fall out of the information sharing systems that help keep people safe, such as ECRIS. You can “control your borders” by having lots of people at border posts. But that is no good to you and a false illusion of control, if by doing so you lose vital information which tells you who is coming in to your country and what their intentions are likely to be. Napolean was quoted as saying that a spy in the field was worth 10,000 men on the ground, and the same principle holds true today. Intelligence sharing is a key weapon in the fight against crime and terrorism, and infinitely more valuable than just having lots of people looking menacing at border control posts.

The other alternative is the UK can accept the jurisdiction of the ECJ, and data protection principles, and then carry on participating in judicial cooperation in criminal and civil matters, open skies, and Euratom.

What it can’t do is pull out of the jurisdiction of the ECJ and continue to have access to all the same, non trade benefits you get as an EU Member. Theresa May’s insistence on withdrawing from the jurisdiction of ECJ is stupid and misguided and will make the UK less safe. A “deep and special partnership” which includes elements of EU Membership, such as judicial cooperation, open skies and Euratom, will inevitably include acceptance of the ECJ as the trade off for taking part in such systems. The sooner the government face up to these legal and political realities the better.