May’s fixation on European courts ties UK’s hands in Brexit talks

What is it with Theresa May and international courts?

The British prime minister appears to have a particular personal obsession with the idea of submitting to any international court, particularly one with a "Europe" in its name. And, no matter that the UK – specifically Tory hero Winston Churchill – was so instrumental in establishing and shaping the older of them, namely the European Court of Human Rights (ECHR) in Strasbourg.

Most immediately we are concerned with May's announcement last January that the UK would have no truck with the EU's Luxembourg-based court, the European Court of Justice (ECJ), a posturing that is now being widely seen as impossibly tying Brexit secretary David Davis's hands in the Brexit talks. It has become a red-line issue, although scarcely one of principle.

"We will not have truly left the European Union, " May said recently, "if we are not in control of our own laws."

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Dispute resolution

All very well, but her government has also recognised the need for some form of dispute-resolution mechanism both during the transition period post-Brexit, and in any trading relationship subsequently negotiated. The closer that is, the more need for harmonised or mutually recognised regulations and a body to oversee it all.

Of course it was daft, frankly. The court of justice is not this big bogeyman

And the ECJ issue has also been injected into discussions about the rights of EU citizens in the UK after Brexit, with the European Commission insistent that their rights, copperfastened in a new treaty, will have to be upheld by an international court. May insists that the UK courts will suffice.

That won't wash with Brussels. But if the problem is the ECJ itself, and the UK has no principled objection to international judges sharing a role with their own, then it should not be beyond the wit of man for negotiators to come up with some sort of new tribunal. Some have suggested, though the UK has dissed it, a court akin to that of the European Economic Area, which Norway and the Swiss accept.

But any such forum would have to be compatible with EU law – in fact a mirror of the ECJ, which the latter may find uncomfortable. It has in the past struck down attempts to create similar parallel courts.

The challenge, as Martin Sandbu of the Financial Times puts it, is that "if the British government means what it says about "'locking in the current position'" – safeguarding the rights EU citizens now enjoy after Brexit – "this interpretation involves interpreting what EU law is today. How this could be done by any other court than the ECJ is a mystery. Surely a UK court is not in any greater position to interpret what EU law is than it is to interpret what, say, US law is."

Obsession

Prof Sir David Edward, a former UK judge at the ECJ, warns that May is “careering towards disaster”. Her position is ludicrous, he suggests: “Of course it was daft, frankly. The court of justice is not this big bogeyman. Why has Theresa May got this obsession in her head? Partly because she doesn’t know the difference between the ECHR [a non-EU body] and the ECJ [of the European Union].”

His explanation is plausible. A few years ago, horrified by some of its decisions against the UK, May it was, as home secretary, who persuaded the Tories to announce their intention to pull the UK out of the ECHR.

In the late 1940s, Churchill and another Conservative MP David Maxwell Fyfe were at the forefront of campaigning for the establishment of a European human rights court in advance of the adoption of the European Convention on Human Rights by the Council of Europe in 1950. The two men were concerned that postwar Europe should build a universalist human rights edifice that could be a bulwark against any repeat of the authoritarianism of the 1930s.

But they had another strong motivation. Maxwell Fyfe feared that a resurgent Labour in Britain would use its 1945 majority to enact legislation harmful to British human rights, which he understood to mean personal liberties, including property rights, rather than social rights. He conceived of a higher court that would have the power to declare acts of parliament in violation of the convention.

There’s a strange historical irony then in the May hostility to the ECHR as well as a deep illogicality in continuing to uphold the idea of universal rights while rejecting any international means of upholding them. The recent Tory manifesto, admittedly, pulled back one step, but the axe still hangs over UK participation in the Strasbourg system.

“We will not repeal or replace the Human Rights Act,” the manifesto says, “while the process of Brexit is under way but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.”

We are promised a veritable bonfire of the courts – and of human rights, many would fear.