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EU citizens' rights and ECJ references

We must not submit to an unequal treaty, nor be taken in by "voluntary" referrals

By Martin Howe QC, 27 November 2017

When we leave the European Union on 29th March 2019, we shall automatically regain control of our laws and our courts. No foreign court will have the right to overrule British courts, or tell us what laws our courts must enforce within the UK.

We do not need the permission of the European Union or of anyone else to achieve this, which is the normal position in any sovereign, independent state. The only way we could fail to achieve this is if through an act of craven, self-harming stupidity we were voluntarily to agree to being ruled over by a foreign court.

It is therefore a matter of dismay to see stories (such as that written by James Forsyth in The Sun on 27 November 2017) saying that non-attributable sources are indicating that the government may be contemplating a so-called “compromise” proposal under which UK courts would make preliminary references for rulings by the European Court of Justice in Luxembourg on questions to do with EU citizens’ rights.

This would be quite extraordinary. Not since the “unequal” treaties between the Western powers and China during the 19th Century has a self-governing sovereign state agreed that the rights of foreign citizens within its territory be regulated by a foreign court.

Let us look at some basic facts. Today, we are part of the European Union, which is a multinational body which has supranational institutions and supranational laws which over-ride the national laws of the Member States. Part of the system of supranational control of our laws is that our courts make so-called “preliminary references” to the ECJ at Luxembourg on questions of EU law, and the ECJ’s rulings are then binding on our courts. However, the ECJ at present is not a foreign court but rather a multi-national court in which we participate and which includes a British Judge and Advocate-General.

After we leave the EU, the ECJ will become a wholly foreign court with no British membership. We shall cease to belong to the EU treaties. Instead, assuming a deal is done, we shall enter into a bilateral treaty with the EU which (among other things) will guarantee certain rights to EU citizens in the UK and to UK citizens in the EU. It is unheard of in international relations for a State to accept as binding the rulings of the courts of the other treaty party. It is also unheard of in the many treaties which the EU has made with non-Member states for any of those states to agree to be bound by rulings of the ECJ, still less to their courts making preliminary references to the ECJ. Even tiny Andorra and San Marino, both wholly surrounded by EU territory, do not agree to such jurisdiction but instead have conventional bilateral international arbitration clauses which keep the parties to the treaty on an equal footing.

So, if the UK were to agree that its courts would make preliminary references to the ECJ after we had left the EU, we would uniquely abase ourselves in international relations and place ourselves lower than any other state with whom the EU has treaty relations. Nor would this be temporary. The rights of EU citizens will last for the lifetimes of the citizens resident here, and for the lives of their children and possibly grandchildren. So this submission to foreign jurisdiction, if it happens, is effectively for keeps.

In fact, it is quite possible to set up a system under which UK courts on the one hand, and the ECJ and the national courts of the EU27 on the other, will cooperate constructively and strive for consistency in the interpretation of the rights of EU citizens in the UK and of UK citizens in the EU.

For those interested, the details of such a system are set out in Adjudicating Treaty Rights in post‑Brexit Britain: Preserving Sovereignty and Observing Comity by Martin Howe QC, Dr Gunnar Beck and Francis Hoar, published by Lawyers for Britain. This paper is now in its second (expanded) edition. This harnesses the general principle of international judicial comity, according to which the courts of countries which are parties to a treaty will look at judgments of the courts of the other treaty parties in order to try if possible to maintain consistency of interpretation of the treaty rules to which they are jointly party. But importantly, this practice respects the autonomy of both systems of courts because the rulings of the other courts are persuasive only rather than binding. For the rare occasions where the courts of the UK and the EU might not be able to agree, we propose a conventional international arbitration panel on which the EU and the UK would be equally represented under a neutral chairman.

There is simply no reason or justification for the UK to accept that the ECJ should make rulings on British court decisions on the rights of EU citizens. This is not just a point of principle, although a very important principle is indeed at stake. The bilateral treaty between the EU and the UK which defines the rights of citizens needs to be objectively and neutrally interpreted, so that each party it bound by the obligations it agreed to, no more, no less. The effect of allowing the ECJ to rule on the treaty as it applies inside the UK would be like signing a blank cheque: the UK’s future obligations under the treaty would be not what we had actually agreed to, but instead whatever different obligations the ECJ chose to write in on the blank cheque under the guise of “interpreting” the treaty in accordance with its purposive and “teleological” methods which give priority at all times to furthering European integration.

This is particularly dangerous in the field of rights of residence. The EU treaties explicitly confer on Member States the right to exclude individuals on the grounds of public security and public policy. Yet the ECJ in its decisions has persistently and consistently restricted and undermined the rights of Member States to protect their public on this ground, to such an extent that some commentators have rightly said that it has transformed treaty provisions on the free movement of persons into a charter for "the free movement of criminals". This trend was opposed for example by the French Conseil d’Etat (France’s highest administrative court) in the Cohn-Bendit case as long ago as 1978 but the trend of making even dangerous criminals undeportable has continued. By agreeing to ECJ jurisdiction over the rights of EU citizens, the UK would risk such rights being further extended against our will, and with no possibility of exercising control.

In the unattributable briefings, it is apparently being claimed that this subjection of our courts to the rulings of a foreign court would be a “compromise” because the referral to the ECJ would be “voluntary” and so a reference would only be made “if a case arose on a point of law that had not been previously addressed” (according to James Forsyth's Sun article, with the same point being made in The Telegraph on 25 Nov 2017). But at present our courts will only make references to Luxembourg on points which have not been previously decided by the ECJ. Indeed, the ECJ has a special procedure – called a “reasoned order” – by which it rejects references from national courts without a hearing when it has already ruled on the points referred.

So this would be no compromise at all, but rather a squalid and abject surrender to being ruled over by a foreign court and to having our laws and our treaty obligations altered at their behest under the guise of their elastic concept of “interpretation”. This subjugation to foreign rule would last all the way into the next century. Media briefings describing this as a “compromise” are sadly on a par with Whitehall’s long habit of weasel words and outright mendacity whenever abject surrenders have been made in the past to ever-encroaching EU powers.

This article was also published on Brexit Central