Leaving the European Court of Justice won't necessarily mean 'taking back control' of our laws in Britain

If the European Court judges that the British version of their rules isn’t compatible with European law it could affect the ability of British people to operate in Europe, or British-based enterprises to export to Europe

The simplest option in most cases would be for the British Parliament to alter British laws and relations as the ECJ redefined their European counterparts (Reuters)

There is something touchingly naive, rather than Machiavellian, in the Government’s series of “position papers” for the Brexit negotiations. There is the assumption throughout that the European Union needs the UK as much, if not more than, the UK needs the EU. Even without the bitterness that this increasingly acrimonious divorce is inducing in British-European relations, this would be a fantasy – but as the talks stall and drag inexorably towards the set departure date of March 2019, these are dangerous illusions.

This is certainly the case with the latest document, Enforcement and dispute resolution. The tone, though infused with legal jargon, is that of a marriage guidance manual, full of wishful thinking and ever-so-reasonable presumptions and assumptions. Thus it presupposes that there will indeed be a “new, deep and special relationship” between the UK and the EU, and that such arguments that arise can be settled through some joint arbitration mechanism, as is usual in international agreements.

The paper rightly says that in no other case does the EU insist on the supremacy of EU law, including case law and interpretations issued by the European Court of Justice (ECJ). Yet that does not necessarily mean that there will be an arbitration mechanism for disputes between the UK and the EU, for the simple reason that there may, in fact, be no agreements to police. And even if there was some form of free trade agreement, and a joint arbitration committee attached to it, that would still miss the point about the greater part of the activity of the ECJ, which is the role it plays in determining European law.

For example, if the ECJ makes a ruling on employment law or product specifications that affects the single market, then that may well lead to a divergence from the laws or regulations operating in the UK. That, in turn, might have an effect on the ability of British people to operate in Europe, or British-based enterprises to export to Europe, if the ECJ judges that the British version of their rules isn’t compatible with European law.

In that circumstance, there is no role for a British court or cross-border arbitration court, because it is solely a matter of what the EU wishes to import or the people it wishes to allow to work in the EU. Even if the arbitration committee or court was entitled to judge on such matters, would both parties agree that it was “sovereign” and that its judgements necessarily overruled those of the British Supreme Court (and High Court of Justiciary in Scotland) and the ECJ?

If so, then the British would not have entirely “taken back control” of their own laws. The simplest option in most cases would be for the British Parliament to alter British laws and relations as the ECJ redefined their European counterparts. In which case, as usual, the substance of sovereignty remains in the European Union, not in the UK. Except – again as with so many other aspects of Brexit – that the British will no longer have a seat in the ECJ, just as they will not be represented in the European Parliament or Council of Ministers.

It is certainly welcome that the Government has brought forward some more documents explaining its thinking. Those thoughts are disappointing in many respects, but that is more or less inevitable given the context of Brexit – no “position paper” can be judged satisfactory when it is part of such a disastrous policy.

The illuminating thing is that the papers do highlight the vast array of problems that weren’t even mentioned in the referendum campaign in 2016. They demonstrate once again the paramount need for the British people to be given a say on the final terms of Brexit before it is too late. That would be an excellent topic for the next discussion paper.