Britain 'could remain under direct control of European court for years'

Britain could remain under the direct control of the European court of justice for years after Brexit, it has emerged, and still be forced to implement the court’s rulings on vexed issues such as immigration.

The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” was revealed as the government published its latest position paper on dispute resolution before the next round of Brexit talks.

While stressing that the range of examples given in the report are hypothetical, the government mainly outlines scenarios in which “direct” ECJ authority is eventually replaced by a new court or committee over which Europe maintains “indirect” control.

It has also become clear that the UK government is now open to preserving the direct authority of the ECJ throughout the interim transition period after March 2019.

The Luxembourg-based court of justice of the European Union is the highest court in Europe. Panels of judges from member states sit to interpret whether EU law is being fairly applied and can issue binding rulings over national courts.

The ECJ has had a relatively benign history with the UK – unlike the more contentious European court of human rights in Strasbourg – but nonetheless became a symbol of compromised sovereignty during the Brexit referendum. The EU has insisted that any future agreements on citizens’ rights and access to the single market must continue to be policed by the ECJ.

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However, the government remains determined to reject the EU’s demand that the ECJ act as the guarantor of the rights of EU citizens living in the UK, insisting these must be upheld by UK courts. That risks derailing talks in Brussels before the British negotiator, David Davis, can switch the discussion on to trade and future relations.

Before the launch of the new policy paper on Wednesday, the justice minister Dominic Raab conceded the UK would have to keep “half an eye” on rulings by the European Union’s highest court in future.

“The UK will engage constructively to negotiate an approach to enforcement and dispute resolution, which meets the key objectives of both the UK and the EU in underpinning the effective operation of a new, deep and special partnership,” concludes the policy paper.

The government’s position as set out in the paper appeared to be considerably more nuanced than May’s promise in her party conference speech last year that, “we are not leaving only to return to the jurisdiction of the European court of justice. That’s not going to happen.”

Andrew Adonis, the Labour peer and backer of campaign group Open Britain, called the government’s stance, “a climbdown camouflaged in jingoistic rhetoric”.

“Not much is left of David Davis’s so-called red line of taking back control from European judges,” Lord Adonis said. “In almost every example the government gives – from the Efta court, to the EEA agreement to the EU-Moldova deal – the ECJ has substantial direct or indirect power over the proposed new relationship between Britain and the EU. And they have confirmed that every past judgment of the ECJ will stand after we leave.”

But pro-Brexit MPs appeared satisfied with the compromise. Sir Bill Cash, the arch-Eurosceptic Conservative MP and chair of the European scrutiny committee, was satisfied that the position paper showed the UK was leaving the jurisdiction of the European court of justice, although he was uncomfortable about the repeated emphasis on the word “direct”.

“This word ‘direct’ has crept in and it’s unnecessary and doesn’t make any real difference,” he said. “The real point is that the jurisdiction of the European court ceases when we leave the treaties because the sole and exclusive basis on which the European court has any jurisdiction whatsoever in the United Kingdom is entirely because of the existence of those treaties, which will cease to apply, and the European Communities Act. When those go, end of story.

“It’s not exactly rocket science and I think there is a lot of absurd chatter coming from the remain/reverse camp, which are more in expectation and hope than reality. I’ve heard them chattering on this morning and it’s all rather pathetic. The real truth is that they don’t understand constitutional decision-making.”

The Conservative former cabinet minister John Redwood dismissed claims that the red line on the ECJ had been blurred. “The paper very clearly says that once we leave in March 2019 or earlier, the ECJ will no longer have jurisdiction in the UK ... and it goes on to say that if, for example, we have a trade agreement then the most obvious model for resolving any disputes is to accept the World Trade Organisation disputes procedure. This paper makes it very clear that the ECJ’s jurisdiction ends the day we leave,” he told the BBC.

In the run-up to the publication of the paper, May insisted ministers had not changed their stance on the role of the ECJ. She said the UK would “take back control” of its laws.

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.”

The government is, however, prepared to enter negotiations about the role of the ECJ during the interim implementation phase that it admitted last week was necessary to negotiate new customs and trade relations. It is understood this may involve maintaining direct control for a limited period.

In the long run, the government draws a distinction between enforcement mechanisms and dispute resolution once the new Brexit agreement is in effect, arguing that individual complaints can be dealt with solely by UK courts and only government disputes escalated to the new arbitration body.

However, test cases involving individuals appealing against unfair treatment by, for example, UK immigration authorities may quickly escalate into a dispute over the interpretation of the whole agreement, potentially allowing the ECJ to step in on behalf of aggrieved EU citizens.

The government insists there remains a meaningful difference between direct and indirect control, although it concedes that in some of the scenarios it outlines – such as in an agreement between the EU and Moldova – there may be little practical option but to agree to rulings from the ECJ or else see the whole agreement fall apart.

Separately, the government will publish one more Brexit position paper on Thursday, setting out how it hopes to ensure that data can continue to pass freely across borders.

Ministers acknowledged on Wednesday night that any disruption to the sharing of cross-border data between Britain and EU countries could be costly to both sides.

The government will set out where it will propose close co-operation between EU and UK law enforcement agencies and public authorities to ensure personal data could continue to be securely exchanged.

Tom Thackray, the CBI’s director of innovation, called the commitment “a step forward” but said an agreement was urgently needed to safeguard essential everyday co-operation, from booking a hotel room to collaborating on medical research.

“If no transition deal is agreed, the UK’s potential £240bn data economy is at risk of isolation,” he warned.

The Lib Dem MP Tom Brake, a supporter of the pro-EU Open Britain campaign, said there was a “total lack of detail” in the plans briefed overnight. “All we know is that the government intends to spend time, money and effort trying to replicate the situation we have now,” he said.

Matt Hancock, the minister for digital, said the government understood concerns from businesses about the future of data exchanges. “A strong future data relationship between the UK and EU, based on aligned data protection rules, is in our mutual interest,” he said.