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Perpetuating ECJ jurisdiction after Brexit

Sir Keir Starmer’s obsessive love affair with the Luxembourg Court

By Martin Howe QC

14 Nov 2017

Under the EU treaties, Judges and Advocates-General who serve on the ECJ and the EU General Court at Luxembourg must be nationals of a Member State. So when we leave the European Union just before midnight on 29 March 2019, the British nationals who are currently serve in these roles will cease to hold office.

As a result, what is currently a multi-national court in which we participate will become an entirely foreign court.

But strangely, Labour’s Brexit spokesman Sir Keir Starmer QC is seeking to perpetuate in every conceivable way the jurisdiction of this foreign court over the UK after we have left the EU. He wrote to the Prime Minister demanding that the ECJ should continue to exercise jurisdiction over the UK during any transitional period, and threatened an amendment to the EU Withdrawal Bill to make this happen if the PM does not agree. And on Monday 13 Nov 2017,  in a BBC interview he argued that the ECJ should have jurisdiction over the UK for the indefinite future where we wish to enter into arrangements with EU agencies.

But it is virtually unheard of in international relations for an independent sovereign state to agree to subject itself to the jurisdiction of a foreign court. One has to go back to the 19th Century to find examples such as the (British) Supreme Court for China sitting in Shanghai, which exercised jurisdiction over British subjects in China and over their disputes with Chinese nationals to the exclusion of Chinese courts.

Nor do the EU’s own international agreements provide any support for extra-territorial ECJ jurisdiction after we have left the EU. At Lawyers for Britain we have exhaustively gone through the EU’s external agreements and cannot find any instance in which a non-Member State has accepted direct ECJ jurisdiction over itself or its relations with EU. Even the EU’s agreements with the tiny statelets of Andorra and San Marino to not accept ECJ jurisdiction and instead contain balanced bilateral arbitration arrangements.

It is sensible that our courts should continue to look at ECJ judgments after exit for two main reasons. First, where our own laws remain the same as or similar to EU laws, it is helpful for our courts to continue to look at ECJ judgments interpreting those laws in the same way as our courts look at e.g. Australian court decisions when their courts interpret laws which are similar to our own. Secondly, if we enter into a post-exit treaty with the EU governing the rights of citizens and other matters, it is sensible that our courts should look at ECJ decisions, and equally that the ECJ looks at the decisions of our courts, in order to try to be consistent in interpreting the treaty.

These are instances where in accordance with general international principles of comity, courts in different countries will look at each others’ decisions and try if possible to produce consistency. But critically, no court is bound to follow a decision of a foreign court if, having weighed it up, in the end it cannot agree with it. The ability of our courts to disagree with, and at the end of the day depart from, the decisions of foreign courts is an essential part of our sovereignty.

My colleagues Francis Hoar, Dr Gunnar Beck and I have published a paper Adjudicating Treaty Rights After Brexit with detailed proposals for a cooperative relationship between the ECJ and UK courts designed to lead to consistent interpretation, but where, importantly, neither court system is made subordinate to the other.

There is simply no reason for us to succumb to the rule of foreign courts after we have ceased to belong to the EU.

Nor does Keir Starmer’s invocation of EU agencies give rise to any need for an exception. To take the European Medicines Agency which he discussed in his interview, there is much sense in the UK continuing to collaborate with that Agency after we have left. And since the Agency is set up under EU law, we cannot realistically expect the EU to agree to exempt the whole Agency from the supervising jurisdiction of the EU General Court and the ECJ.

But it simply does not follow that we must therefore submit to those courts having jurisdiction in any way over the UK. We can perfectly sensibly follow EMA decisions on licensing of medicines as the normal rule, so long as the UK’s own MHRA (Medical and Healthcare Regulatory Agency) has the power for good reason to depart from EMA decisions in the UK by choosing to license drugs which the EMA has refused, or to refuse drugs the EMA has licensed. Indeed, once we have left the EU, we will have the opportunity of following Swiss law and allowing the UK MHRA to license drugs on the basis of safety assessments made by the US FDA and other competent regulatory authorities around the world, so dramatically cutting the regulatory costs of bringing drugs to the UK market. Such a system would not involve accepting the jurisdiction of US courts, any more than of the ECJ.

It has been a persistent problem of some lawyers who move into politics that they are unable shed some of the less attractive preconceptions and attitudes which are endemic in certain sectors of the legal profession. In the case of Keir Starmer, regrettably he seems to have brought with him a lawyer’s obsessive love of the Luxembourg court to the extent that it blinds him to the importance of defending the international sovereignty of the nation in whose Parliament he now sits, and the right of the constituents he represents not to be ruled by foreign courts.

This article is also published on Brexit Central.