In recent weeks, we have become used to unreasonable demands from the European Commission, from their refusal to discuss trade to the seemingly arbitrary size of the “divorce bill”. But their most bizarre claim of all was the declaration in May that they wanted European law, overseen by the European Court of Justice, to continue to apply to EU citizens in the UK after Brexit.
Such a suggestion would create a privileged class of over 3 million EU residents in the UK, whose rights would be enforced by a court beyond the influence of our Government and Parliament. This could be incredibly long-lasting – persisting for the lifetimes of EU citizens currently resident and potentially for those of their children as well. There is no exact precedent for this situation in history, but the closest parallel comes from the nineteenth century, when the British Supreme Court for China exercised extra-territorial jurisdiction over British citizens in concessions such as Shanghai, so they were not subject to the jurisdiction of the local Chinese courts.
Resisting this claim is not, therefore, anything to do with whether one voted to Leave or Remain. It is about upholding a simple matter of principle: independent sovereign nations cannot be bound by the rulings of foreign courts. We would have no more right to say that our Supreme Court should rule on British nationals on the Continent. George Washington had it right when, as first President of the United States, he declared:
“If we are to be told by a foreign Power…what we shall do, and what we shall not do, we have Independence yet to seek, and have contended hitherto for very little.”
The problem actually goes even further, for the ECJ is not only a foreign court but a political court, too. The court has “ever closer union” at its heart, and its rulings have that objective in mind. So the continued jurisdiction of the ECJ would be intolerable to an independent United Kingdom. It would be completely inconsistent with our having voted to leave the EU and take back control; it makes the ECJ utterly unsuitable as an impartial adjudicator of bilateral treaty obligations.
This does not mean, of course, that British courts in the future should give no attention to past decisions of the ECJ once we leave. It is standard practice across the world for the courts of countries in an international treaty to pay attention to the judgments of their partners, and to try, if possible, to apply a consistent interpretation. The Prime Minister outlined exactly this in her speech in Florence in September. A former Justice of the US Supreme Court, Antonin Scalia, summarised the idea when he said:
“We can, and should, look to decisions of other signatories when we interpret treaty provisions… Even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration.”
The United States in fact provides a pertinent example of these ideas in action. Around the time of their independence, many States – starting with Virginia – passed Reception Statutes formally adopting English common and statute law as their own in much the same way as we are nationalising the Acquis Communautaire with the European Union (Withdrawal) Bill. It would be inconceivable for the US to accept any foreign court overruling its own Supreme Court, but it has always been accepted that account be taken of preceding legal decisions and of the origin of the laws which it administers.
In the notable case of Amalfitano v. Rosenberg in New York in 2009, for instance, the Court of Appeals ruled that “attempted deceit” was sufficient to sustain a cause of action under judiciary law Section 487, on the basis that it derived not from common-law fraud, but from the first Statute of Westminster – a criminal statute adopted by the Parliament of Edward I in England in 1275. Thus, the fundamental source of the law was taken into account, but there was absolutely no question of referring the case back to English courts.
We will adopt just the same attitude towards the ECJ’s preceding decisions. Where there are disagreements between ourselves and the EU on the interpretation of agreed provisions, we should have recourse to a balanced, impartial international mechanism. As Lawyers for Britain have outlined, this could be achieved by creating an International Treaties Court of British judges in the UK and under UK law to guide the non-specialist courts on the interpretation of the British legislation which implements previous European provisions.
Such a body would provide symmetry with the ECJ, so that both the UK and the EU would have a central court making decisions on individual cases – including the rights of citizens – relating to obligations under treaties. Then, under well-established international principles of comity, both courts would pay attention to the decisions of the other and would seek to follow them if possible. Crucially, however, neither court would be bound by the other, and in the rare event of a persistent divergence of interpretation, an ad hoc bilateral international body could be convened.
We must, therefore, continue to be robust in rejecting the continued authority of the ECJ as a “Red Line”. The Prime Minister said in her Lancaster House speech in January that “we will not have truly left the European Union if we are not in control of our own laws” and she was right. Reports that the Government may now be willing to give in to the EU’s demands are deeply disturbing as they drive at the very core of the question: what sort of country do we wish to be once we are outside the EU?
We surely wish to be a nation which has taken back full control of our own laws, made by our own elected representatives and interpreted by our own appointed judges. To accept the ECJ would be to condemn ourselves to the status of a vassal state, relinquishing power over our laws – and by extension over our people – to a court on which we are not represented. The citizens of a newly sovereign nation deserve better than that.