One of the reasons the British people voted to leave the EU was to reclaim control of their laws – to give Parliament the sole responsibility for making and amending laws and the courts the sole authority to interpret and enforce them. This work is now well under way. Parliament’s control over the mass of current EU laws will be reinstated following the passage of the EU Withdrawal Bill, which will also end the supremacy of the European Court of Justice (ECJ) over more than 20,000 laws currently in force in the UK.
However, one important question remains. When the UK concludes new agreements with the EU covering aspects of our future cooperation, be it trade or security, who will then interpret the agreements? The old way was for the EU’s Court – the ECJ – to have control. The ECJ’s remit, set out in the EU’s treaties, to push for further integration made this an unsatisfactory arrangement, even while we were a member. It makes no sense at all now we are a third party. If you were to sign a contract, would you accept that the other party should have full control of interpreting what the contract said?
Well this is exactly what the EU has suggested. Giving the ECJ the power to interpret the rights given to its citizens in the UK is a predictable power grab to retain a foothold for the ECJ in our legal system. This is clearly unacceptable.
So how do we come up with a solution that is fair to both sides, gives both sides certainty while respecting our sovereignty? Attempting to square this circle, three senior and experienced lawyers, from the organisation Lawyers for Britain led by Martin Howe QC, have formulated a detailed and workable solution.
Their report recommends the establishment of an International Treaties Court, staffed by British judges and working under UK law. This would be a new UK body that could become a centre of excellence giving guidance to all the UK’s non-specialist courts and tribunals when an issue of treaty interpretation were to arise. It would provide high quality interpretation and mirror the role of the ECJ, which would have its own remit within the EU to interpret future treaty rights, such as those of UK nationals in the EU27 countries.
So this would mean two courts, a UK one and an EU one, would be interpreting the same agreement. While a clearly worded agreement should reduce the potential for differing interpretation, what would happen in the case of a dispute?
Under ordinary principles of international comity, courts in different countries interpreting the same treaty provisions should pay respect to each other’s decisions and, although not bound to follow them, should seek to do so if possible. This is a sensible principle: a high degree of coordination is desirable, and it would reduce the potential for disputes.
However, if the ECJ reverted to type and handed down further integrationist judgements, unacceptable to the UK, the authors propose a joint international tribunal to adjudicate and settle disputes. This is a fair and reasonable proposal and one that is fully in line with international norms.
This new UK International Treaties Court could be readily extended as other agreements were made with the EU, adjudicating over other treaty-derived rights and obligations within the UK – from the provisions of the proposed UK-EU free trade agreement even to future agreements with non-EU states.
It would be a practical and symbolic addition to the British legal system – a demonstration that the Government has listened to the British people’s desire to take back control of our laws. But also a measure to give our judges the necessary tools to uphold and interpret the law while being free from oppressive oversight from Luxembourg.
