The demand was unexpectedly precise, and as a particular demand it seemed almost to come from nowhere. In her speech to the conservative party conference in October 2016, the newly appointed prime minister, Theresa May, made ending the jurisdiction of the European Court of Justice in the UK a firm commitment for Brexit.
Unlike most of the other Brexit promises up to that date, such as “taking back control” of “our” laws, borders or money, this was not vague. The jurisdiction of any court is, and always should be, a binary matter. Either you are subject to the jurisdiction of a court or you are not. This was a “yes/no” issue.
We do not (yet) know how or why the prime minister decided to include this definite objective in her conference speech. It had not been mentioned in evidence from the former cabinet office minister Oliver Letwin to a parliamentary committee in July. Nor had the new Brexit minister, David Davis, mentioned it in September, either in his wide-ranging House of Commons statement or his evidence to the same committee. There was little sign that this was to be a government “red line” before the conference.
But, once made, the commitment had consequences. As this blog predicted, the necessary implication was that the UK would not be seeking to join the single market, which was eventually admitted by Mrs May in her Lancaster House speech of January 2017.
For, although it may be possible to be a member of the single market but not a member of the EU, this would effectively be impossible for the UK if there was no role whatsoever for the ECJ in interpreting and enforcing single market rules. There are a wide range of implications beyond the single market, from environmental protection to European arrest warrants.
So, why was such a precise and consequential promise made? There are at least four possible explanations. The first is that Mrs May, as a former home secretary, simply transferred her well-documented dislike of the European Court of Human Rights to the similarly named European Court of Justice. (The former is not an organ of the EU and has a separate jurisdiction.)
The second possible explanation is that the commitment was a revival of a pro-Brexit demand made in the February before the referendum. When the former prime minister David Cameron was seeking to keep Boris Johnson on board for the “remain” side, he offered a so-called sovereignty act (a ludicrous legislative device that meant an act of parliament would declare, by means of circular logic, acts of parliament were sovereign).
About that time, and just as Mr Cameron was seeking a “deal” with the EU, the public law and EU law specialist Marina Wheeler QC (who happens to be married to Mr Johnson) published a fascinating and provocative post on the highly regarded UK Human Rights blog. This is well worth reading carefully, not least in hindsight. It sets out an argument for how the ECJ has overstepped the mark with the charter of fundamental rights:
…the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
To limit the still-growing reach of EU law, it is not enough to use “red cards” to stem the flow of EU legislation. Reform needs to address the EU legal order, in particular the jurisdictional muscle-flexing of the Court in Luxembourg.
There was no point in the UK addressing the effects of the ECJ’s activism and expansionism, Ms Wheeler contended; the ECJ itself needed to be dealt with as the cause of the mischief.
A couple of weeks later, as Mr Johnson pondered whether to support the “leave” campaign, he wrote two draft newspaper columns, one “for” and one “against”. Both mention the jurisdiction of the ECJ.
In the (then) unpublished column against Brexit he wrote:
The ratchet of integration clicks remorselessly forward. More and more questions are now justiciable by the European Court of Justice, including that extraordinary document, the European Charter of Fundamental Rights. This bestows on every one of our 500m EU citizens a legally enforceable right to do all sorts of things across all 28 states: to start a business, to choose any occupation they like, to found any type of religious school, to enjoy “academic freedom”. I shudder to think what is going to happen when UK citizens start vindicating these new “rights” in Luxembourg.
[...] If sovereignty is the problem — and it certainly is — then maybe it is worth looking again at the prime minister’s deal, because there is a case for saying it is not quite as contemptible as all that.
He is the first prime minister to get us out of ever closer union, which is potentially very important with the European Court of Justice and how it interprets EU law.
In the column that was published at the time, when Mr Johnson came out in favour of Brexit, he wrote:
That is why EU law is likened to a ratchet, clicking only forwards. We are seeing a slow and invisible process of legal colonisation, as the EU infiltrates just about every area of public policy. Then – and this is the key point – the EU acquires supremacy in any field that it touches; because it is one of the planks of Britain’s membership, agreed in 1972, that any question involving the EU must go to Luxembourg, to be adjudicated by the European Court of Justice.
It was one thing when that court contented itself with the single market, and ensuring that there was free and fair trade across the EU. We are now way beyond that stage. Under the Lisbon Treaty, the court has taken on the ability to vindicate people’s rights under the 55-clause “Charter of Fundamental Human Rights”, including such peculiar entitlements as the right to found a school, or the right to “pursue a freely chosen occupation” anywhere in the EU, or the right to start a business.
These are not fundamental rights as we normally understand them, and the mind boggles as to how they will be enforced. Tony Blair told us he had an opt-out from this charter. Alas, that opt-out has not proved legally durable, and there are real fears among British jurists about the activism of the court.
Mr Johnson is not a lawyer, and it would seem reasonable to assume that one significant influence (or source) in respect of the somewhat legalistic mentions of the ECJ in both draft columns was Ms Wheeler’s earlier post.
The Wheeler post and the Johnson columns may therefore be the genesis of the unexpected May commitment in the conference speech. If this is the case, it ignores the counterpoint (made by commenters under Ms Wheeler’s post and elsewhere) that the abuses identified were exaggerated, irrelevant or could be dealt with by other means.
A third (and related) explanation is the aborted work done on the sovereignty act at the time of Mr Johnson’s pondering. One reason why this (in the words of Mr Johnson) “fruit of heroic intellectual labour by Oliver Letwin” got nowhere, is that it would not work if the UK was to remain a member of the EU. If an act of parliament was in breach of EU law then the legislation would have to be set aside, regardless of any supposed sovereignty act. The circle of EU law could not be squared by a sovereignty act.
The lesson may then have been drawn by the government that there was no way EU law, and thereby the jurisdiction of the ECJ, could be accommodated with UK sovereignty. The Luxembourg court would have to be thrown out with the rest of the Brexit bathwater.
A fourth possible explanation is that hard Brexiters managed to get the demand past the new prime minister when, in theory, the government was still developing its position. These hard Brexiters knew exactly what the implications of the demand would be, even if Number 10 at the time did not. Once the the commitment had been officially adopted then it would only be a matter of time before a soft Brexit would have to be abandoned, with no role for the ECJ in any continued post-Brexit UK membership of the single market.
Whatever the explanation, the October conference promise has shaped Brexit policy. Certain options are out. New problems have been created with no immediately apparent solutions. The government may still accept a role for the ECJ in dealing with certain disputes, at least in a transitional agreement. Or it may promote some alternative means of dispute resolution (a number were mentioned in the February white paper).
But the impression remains that a precise and hugely consequential demand was adopted for a conference speech without much thought, and it has created a red line that needlessly hinders the government. This is not what red lines are supposed to be for.