May ‘foolish’ on EU law: ex-govt legal chief 

May ‘foolish’ on EU law: ex-govt legal chief 

UK Prime Minister Theresa May’s assertion that the UK can retain the benefits of the single market and customs union while maintaining independence from all European laws has been mocked by the government’s former legal services chief.

It follows the Brexit department’s position paper, published last week on the customs union, which said the UK would leave the single market and customs union while remaining closely linked to both. Another paper is due to be released this week on the European Court of Justice (ECJ), which constitutes one of May’s so-called “red lines” in the talks as she promises to end the jurisdiction of the court in Britain. The role of the ECJ was not mentioned in the referendum ballots on June 23 last year.

The government’s insistence that the UK leave the jurisdiction of the ECJ could also mean Northern Ireland loses tens of millions of pounds in funding for its peace and reconciliation process.

Sir Paul Jenkins, who served as the Treasury solicitor and head of the government’s legal services from 2006 to 2014, told The Observer that “we will have the ECJ in all but name” after leaving the EU, despite the repeated pledge during the referendum last year that London’s politicians would “take back control”.

Jenkins, now of barristers Matrix Chambers, said: “If the UK is to be part of something close enough to a customs union or the single market to remove the need for hard borders, it will only work if the rules are identical to the EU’s own internal rules.

“Not only must they be the same but there must be consistent policing of those rules. If Theresa May’s red line means we cannot be tied to the ECJ, the Brexit treaty will need to provide a parallel policing system.

“That may be a new court but, in reality, any new court will have to follow what the ECJ says about the EU’s own rules, otherwise the new system won’t work. So, never mind Theresa May’s foolish red line; we will have the ECJ in all but name.”

Catherine Barnard, professor of EU law at Trinity College, Cambridge, wrote in the Observer that there was serious doubt on whether the UK could escape ECJ jurisdiction while staying close to the single market and customs union. Steve Peers of Essex University agreed, saying the approach was “simplistic” and the judicial version of “have our cake and eat it too”.

The European Court of Justice in Luxembourg. Picture credit: Flickr 


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