The ECJ for Beginners
Theresa May wants to leave the ECJ. The European Court of Justice oversees European Law. It is not possible to appeal decisions that national courts have made in the ECJ. Instead national court refer questions relating to EU law to the ECJ. (The difference means unless there is some potentional question or issue relating directly to EU law, the ECJ is irrelevant and does not ‘overule’ British courts unless the UK is not taking EU law into consideration when it makes judgements). The purpose of this is to make law across Europe consistent for all citizens. The court also can rule against other EU institutions if they act outside their powers.
The court has 28 Judges. These are legal experts whose independence is "beyond doubt" and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are of recognised competence. In practice, each member state nominates a judge whose nomination is then ratified by all the other member states
It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and application of the Treaties of the European Union.
The ECJ & Criminals & Terrorists
Contrary to what a lot of newspapers and leavers are saying at the moment, EU law and the ECJ do allow for the removal of criminals from EU nations and to bar them entry at our borders. There have been some high profile cases of known criminals carrying out serious crimes here. The main issue with this has been a failure of information sharing rather than the ability to stop people entering. There is no obligation for other EU nations to share details of criminals unless they feel there is a particular need to – eg terrorism.
Talk of this at the moment is a attempt to discredit the ECJ and drive a hard brexit by an ignorant (sometimes deliberate) confusion with the ECHR.
The ECHR is about the European Convention on Human Rights not EU law. There are 47 not 28 members of it. Our membership of this pre-dates our membership of the EU.
Indeed our membership of the EU and having a deal in place over cooperation over crime is supported by May herself, who used this as a reason to remain and pointed out that in 2015-16 we deported 3451 EU criminals compared to 1019 prior to data sharing. The data sharing that May threatened to bargain with, prior to the recent terrorist attacks here. In terms of security this is an area where in terms of security we would benefit with MORE cooperation not less.
The ECJ and Brexit
After Brexit, the ECJ will continue to rule on cases where EU law is ambiguous. Some of those cases will deal with laws passed in Brussels before Brexit, which the UK will have ‘converted’ in the Repeal Bill.
The ‘elephant’ in the Repeal Bill, therefore, is whether those future ECJ decisions will influence the decisions of the UK courts after Brexit day.
EU laws are interpreted in a different way from UK laws, with less focus on the literal meaning of the text and more on the purpose of the measure. The Institite for Government argue that:
‘This should be allowed to continue when EU laws are ‘converted’ postBrexit. There is no point imposing a literal style of interpretation on laws that were not designed for it.’
Which makes sense in theory – though in practice UK law would end up being UK law and UK law derived from EU law, in two parallel system rather than just UK law.
It also doesn’t decide whether the UK should continue to follow EU laws when ECJ rulings are made and to apply them the same here or whether we would make rulings ourselves which might end up in conflict with subsequent ECJ ruling.
All of which kind of makes your mind bend when you think about it and makes the law more complex and difficult to follow. The intention is that in time we make our own laws to replace these UK laws derived from EU law, but that might not work either, if we are still working in some way with the EU / subject to EU treaty conditions.
Still following?
Alternatives: The EFTA Court, a New Post Brexit Court or Arbitration
Some people say that we could go to an EEA agreement and instead be subject to a different court: The EFTA Court.
This court oversees the law of Iceland, Liechtenstein and Norway who are subject to a number of European laws but there were legal difficulties in giving EU institutions power over non-members so the EFTA Court was set up instead. It is more balanced in terms of power with the nationality of each judge.
Of course we’d still be subject to EU law under it.
Other people have suggested we set up a new court especially for the UK / EU. And others still – David Davis included - have suggested we go for an arbitration system instead.
The main problem with an arbitration system is that it hands back control to the state, rather than the individual. This is both in the independence of who represents the UK – judges are more independent from the state – and who can bring a case – usually arbitration cases can not be submitted by businesses or individuals (in the context of everything else going on, you can see the problem with this. Image the perfect storm of the Human Right Act being repelled, an EU citizen living here married to a Brit who dies and another incident in the vein of Grenfell / Hillsborough and the ability for someone to get justice). I sincerely doubt the possibly of the EU agreeing to it, because of the UK’s already abysmal reputation in this area in how it treats citizens, regardless of whether they be British, EU or non-EU.
See two threads below on this:
Raphael Hogarth @Raphael_Hogarth
Yesterday we had the most detailed discussion yet, from a minister, on dispute resolution after #Brexit. Thread on DD’s Marr interview. 1/
ECJ was discussed in citizens’ rights context. I.e. EU cit in UK says in 2025 ‘I was promised more pension £ than this’. Who adjudicates? 2/
This is one of MANY areas where ECJ rears its head. See my @instituteforgov paper out today 3/
www.instituteforgovernment.org.uk/publications/brexit-and-european-court-justice
Even under ‘dispute resolution’ is a range of poss post-Brexit disputes. Cits’ rights/divorce bill/regulatory alignment/other cooperation 4/
The naïve view says: either UK judges will always decide who is in the right, or there will be oversight from the ECJ. Not so. 5/
Marr raised a “third way” between ECJ jurisdiction and total autonomy for UK judges: a new court with judges from both sides. 6/