Category Archives: European Court

Britain, European Court, European Parliament, European Union, Government, Politics, Society

EU law may have precedence over UK courts for years after Brexit

BREXIT

The position paper was released by David Davis’s Department for Exiting the EU.

The UK Government has denied watering down its Brexit plans as officials have admitted EU judges could have jurisdiction over Britain for years after it leaves the bloc.

The Prime Minister, Theresa May, insisted the UK would ‘take back control’ of its laws, saying: ‘When we leave the EU we will be leaving the jurisdiction of the European Court of Justice.’

But a position paper published by the Government suggested the ECJ could continue to have control over Scots and English law for up to three years after Britain leaves at the end of March 2019.

That could mean EU judges will continue to pass down rulings on key issues until an independent new body is established to adjudicate on post-Brexit rows over trade or immigration.

Jacob Rees-Mogg, the Tory MP for North East Somerset, said: ‘If the ECJ has jurisdiction, you are part of a European superstate. Once you leave, it cannot have jurisdiction – that is the simple test.’

Officials have not been able to rule out the possibility that European judges could still have some influence even after the end of the three-year transition period. They highlighted the fact that trade deals that the EU has reached with other countries including Moldova force them to take account of European law.

Justice minister Dominic Raab admitted the Government would continue to keep ‘half an eye’ on EU laws after Brexit.

The prime minister said that after leaving the EU, ‘Parliament will make our laws – it is British judges who will interpret those laws and it will be the British Supreme Court that will be the arbiter of those laws’.

Mr Rees-Mogg welcomed the fact that the position paper made it clear the UK will eventually leave the influence of the ECJ.

But he added: ‘I would oppose the continuation of ECJ jurisdiction from the moment we leave the EU. If it continues beyond that, it is a problem. Once the European Communities Act is repealed, there will be no legal basis for ECJ jurisdiction.’

The position paper released by David Davis’s Department for Exiting the EU ruled out any ‘direct’ ECJ jurisdiction over Scots and English law after Brexit. It said legal disputes involving individuals and businesses should in future be decided in the UK judicial system, with the Supreme Court as the final arbiter.

It added a new dispute resolution mechanism – which could involve a joint committee or arbitration panel – will have to be created to deal with disagreements over the interpretation and application of the Brexit deal.

But it did not rule out the ECJ maintaining its authority during the transitional period, expected to last a number of years after the March 2019 deadline for Brexit, saying only that Britain will ‘work with the EU’ on the design of interim judicial arrangements.

It set out a range of existing arrangements involving the ECJ that could act as possible models for the new mechanism. These include the EU’s agreement with European Free Trade Association states such as Norway and Iceland and a treaty with Moldova.

Norway has its own EFTA Court to rule on disputes with the EU but it has to ‘pay due account’ to all relevant ECJ decisions.

The EU-Moldova agreement requires that, where a trade dispute concerns an interpretation of EU law, an arbitration panel must refer the question to the ECJ and be ‘bound by its interpretation’.

The Government document makes it clear that Britain is not committed to following any of the existing models, but it does not explicitly rule out any scenario other than direct ECJ jurisdiction.

The main job of a resolution body would be to adjudicate on disputes between the EU and the UK on how a trade deal will operate. It could also have to pass judgment on immigration matters.

Remain-backing groups accused the Government of a climbdown for saying there would be no ‘direct’ jurisdiction of the ECJ compared with its previous position of no jurisdiction whatsoever.

UK officials said that Britain would seek ‘legal autonomy’ but that the remaining power of the ECJ to rule on UK matters depended on the ‘scope’ of the transition period, which could last until 2022.

. More on Brexit UK Government threatens to get tough if Brussels bars trade deal

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Britain, Economic, European Court, European Union, Government, Legal

Free-trade deal possible post-Brexit following landmark EU court ruling

FREE TRADE AGREEMENT

ECJ

The court ruled that Brussels has trade negotiating competence over all goods and services.

Britain’s ambition to sign a quick Free Trade Agreement with the European Union after Brexit has received a significant boost after a landmark ruling by the European Court of Justice handed expanded trade negotiation powers to Brussels.

The much-anticipated decision from the court in Luxembourg surprised experts by ruling that on key areas – including financial services and transport – the European Union does not need to seek ratification of a trade deal by the EU’s 38 national and local parliaments.

Trade experts said the ECJ ruling could substantially reduce the risk of any future EU-UK free trade agreement getting bogged down in the EU national parliaments, opening the way for an FTA to be agreed by a qualified majority vote of EU member states.

“The Court of justice says all services – even transport – can be ratified by a qualified majority vote, which is potentially quite a big opening for the UK,” said Steve Peers, professor of EU law at Essex University. “It could certainly make things easier.”

In the ruling, the ECJ was asked to decide whether the new-generation bilateral EU-Singapore trade deal should be treated as a so-called ‘mixed’ agreement – that requires ratification by national parliaments – or could be agreed by a qualified majority vote of member states.

The court ruled that the EU did not have exclusive competence to conclude the Singapore deal, but said that only in two narrow areas – namely non-direct foreign investment and the investor-state dispute resolution mechanisms – did it need to seek ratification by national parliaments.

By contrast, the court said the EU did have competence to conclude agreements without ratification across the great majority of the Singapore agreement – contradicting parts of a previous opinion by the court’s advocate-general.

The court ruled that Brussels has trade negotiating competence over all goods and services.

FTA2jpg

Definition, meaning and purpose of a Free Trade Agreement (FTA).

Areas covered by EU competence include all goods and services, “including all transport services”, as well as intellectual property rights, competition policy, labour and environmental standards and the rules relating to exchange of information.

Legal and trade experts said the ruling had potentially massive implication for Brexit if the UK formulated its own FTA to avoid investment provisions and investor-state dispute mechanisms, relying on alternative arrangements such as bilateral investment treaties and WTO panels.

“This is the most significant ECJ case on EU trade policy for twenty years and has huge ramifications for any UK-EU FTA,” said Nicole Kar, head of international trade at Linklaters, the law firm.

“In policy terms, now the UK government will want to consider whether it moderates its ambition for the UK-EU FTA to those matters where there is exclusive competence in order to secure agreement through EU Member State governments by qualified majority voting.”

If Britain took a more expansive approach, Ms Kar warned, it risked any FTA getting mired in member state politics as happened last year when the regional Walloonian parliament of Belgium held the EU-Canada trade deal to ransom.

This problem arises because some EU member states, like Belgium, have domestic law that requires local parliaments to sign off on trade deals before they can be ratified by at a national level.

Allie Renison, head of EU and trade policy at the Institute of Directors, said the court ruling was to be welcomed and would make it easier for the EU to conclude deals “without fear of as many hold-ups from national and sub-national legislatures”.

“How this affects Brexit negotiations will depend on whether the final trade agreement includes investment provisions or not, although neither the UK or EU has expressed much interest in this to date,” she added.

“It’s important to remember that any eventual UK-EU trade agreement would not be about opening up each other’s markets in controversial areas, but trying to limit the amount of disruption to trade, and so it is unlikely to encounter the same resistance from other EU countries once concluded by the Commission.”

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Britain, European Court, Government, History, Human Rights, Politics, Society, United Nations

Celebrating 800 years of the Magna Carta: why would Britain contemplate leaving the ECHR?

MAGNA CARTA & ECHR

The 800th anniversary of the Magna Carta will be celebrated in Britain this year. This was the treaty signed between King John and a group of rebellious barons in 1215 that guaranteed British citizens a range of freedoms and civil rights. One of the 25 guarantors of the Magna Carta was the Earl of Winchester, Saer de Quincy, whose ancestors were from France. De Quincy fought King John when he failed to respect the Magna Carta and it all contained, and asked the French prince Louis to lay claim to the English throne. Whilst on a crusade, and far away from home, De Quincy died in 1219.

As a crusader today, De Quincy would probably have been labelled a foreign fighter by the intelligence services and would never have made it to the Kingdom of Jerusalem, having been stopped by border control as he attempted to leave the UK. His attempts to have King John of Runnymede replaced by a French king would have landed him in jail under anti-terrorism laws. And no doubt GCHQ, the intelligence services listening outpost in Cheltenham, would have kept him and his fellow barons under 24/7 surveillance as a threat to national security.

Today Magna Carta (and the accompanying legal presumption of habeas corpus) is celebrated as one of the most important documents in the history of civil rights. It is widely seen and accepted as being the precursor to later conventions that protect human rights and the rule of law, including the UN Universal Declaration of Human Rights, the European Convention on Human Rights and, more recently, the EU Charter of Fundamental Rights. Magna Carta, though, was never meant to protect all the people, whereas the UN and European documents gives equal protection to all citizens, regardless of their status in society.

Today, too, we don’t need charters to protect Barons against the abuse of power by Kings. But we do need laws that protect citizens against abuse of power by governments, and we need not only national laws, but European and international ones.

David Cameron symbolises Magna Carta as the ultimate expression and mantra of British values. While some Tories are now promulgating the argument that the UK should withdraw from the European Convention on Human Rights (ECHR) and return to those traditional values, against the backdrop of the Magna Carta anniversary celebrations their arguments are especially ironic. For example, they strongly accuse the ECHR of limiting the freedom of governments, but King John probably complained too about the Magna Carta unduly restricting his absolute freedom to rule as he wanted. But crucially those in power must be bound by law in order to protect citizens from arbitrary rule.

800 years on, the values and principles laid down in Magna Carta have been embraced by large parts of the world. They have become universal and their shared values are at the core of the European Union as a community of citizens. We should be glad that European courts in Luxembourg and Strasbourg protect us against governments exceeding and abusing their powers, undermining civil liberties and the rule of law.

Fundamental rights, the rule of law and democratic principles enshrined into nationhood are frequently violated in nearly all EU member states. In some cases, the violations are serious and systematic. The current Hungarian government is one of the most egregious offenders. In recent years, the media has been critically gagged, electoral law changed to secure an absolute majority for the governing party, political opponents weakened and the independence and impartiality of the judiciary undermined. But there are also many other examples across Europe: the ant-gay laws in Lithuania, the deportation of Roma people from France, the cruel and inhumane treatment of underage asylum seekers in the Netherlands, and the collective disregard shown for the law and civil liberties in many countries’ counter-terrorism policies.

If we become accepting of tolerating torture, secret prisons, rendition, abduction, and indefinite detention without fair trials and representation then we will lose our moral authority. Such blots tarnish Europe’s status as a shining beacon of freedom and human rights in the world. EU governments must be held accountable for such crimes, especially those that are committed in the name of defending democracy.

That is why we need legal instruments to uphold our common values, even if this means that sometimes national authorities are overruled. EU member states voluntarily signed up to these supranational laws and conventions for good reason, namely because it is the essence of democracy that those in power are bound by laws and that their powers are limited. Whilst that may sometimes be awkward, such checks and balances are the vital safeguards which protect us against abuse of power by the state.

As it happens, these principles are not politically left or right-wing, nor are they alien to modern British culture. Quite the opposite: safeguarding citizens’ rights and the rule of law have their roots firmly established in that ancient, famous document that will be celebrated this year. Magna Carta does not set Britain apart from the rest of Europe. It is the expression and very epitome of the common European values that we have all come to embrace.

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