Martin Howe QC, chairman of the pro-Brexit group Lawyers for Britain, is concerned Boris Johnson’s withdrawal agreement allocates the Luxembourg-based court a role in interpreting matters of EU law as they apply to the UK – arguing by its very nature, it cannot be relied upon to act as a neutral party. Speaking during a visit to the House of Commons, he told Express.co.uk: “My point is that first of all when we were a member state of the European Union, the European Court of Justice was not a foreign court in the sense that it was a multi-national court with a British component in it. “Arrangements in which sovereign states submit themselves to joint courts are fairly common.”
There were plenty of problems with the way the ECJ operated, but the UK was at least embedded in the EU’s institutions and as such it was not unreasonable to accept being under its jurisdiction, Mr Howe said.
However, when Brexit finally became a reality on January 31, the situation changed dramatically, he added.
Mr Howe was the only non-MP on the so-called Star Chamber which offered crucial legal advice to the European Research Group (ERG) on the backstop arrangements for Northern Ireland contained within Theresa May’s draft withdrawal agreement.
He said: “It’s now become a completely foreign court.
Our idiotic civil service got involved and submitted themselves to European Court jurisdiction
Martin Howe QC
“It’s virtually completely unheard of in a treaty for a sovereign state to submit itself to rulings of a foreign court. The exceptions are so rare.
“You have to go back to things like the treaties between China and Western powers in the 19th century to find anything like it.
“If you look at all the European Union’s external treaties, they had never succeeded in imposing such a clause on any foreign country, any non-EU country, until they imposed it on Ukraine, Moldova and Georgia, who were ex-Soviet republics partly occupied by Russian troops.
“And that’s the one occasion they’ve done this until our idiotic civil service got involved and submitted themselves to European Court jurisdiction in the withdrawal agreement.
“I think it’s grotesquely unfair and undesirable for a whole host of reasons. It was a blunder of unknown proportions.
“An alternative viewpoint is that the people who were negotiating on behalf of the UK were actually negotiating against the UK’s interests.
“I repeatedly highlighted it – every country has resisted it, down to Andorra and San Marino, tiny countries who are surrounded by EU territories, and Switzerland.
“I think the practical problems of it are that it puts the court in a position of effectively being able to rewrite our treaty obligations after the event by claiming to be interpreting them.”
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Mr Howe suggested the rules could work against the interests of UK citizens living in the EU.
He explained: “For example, if the European Court in Luxembourg comes up with a decision which under-interprets rights they should enjoy under the treaty, the United Kingdom would have no recourse at all.
“We’d be stuck with it because we couldn’t go to international arbitration.
“The way to address it is to say as part of the future deal they’ve got to take these clauses out of the withdrawal agreement.
“I think it is a massive mistake not to do it and it’s something we will regret for the next 50 years.
“One of the problems with this is that it is a highly legal, technical point but it does need to be drawn out and given a lot of attention.
“The trouble is, this is a sort of long-burning issue – it could be 10 years down the road when we are suddenly hit by a European judgement which does something awful and then they will suddenly realise we should have got rid of that clause.”
Mr Howe, a regular visitor to Westminster, said conversations with politicians had assured him they were “aware” of the issue.
However, he added: “I honestly don’t know the extent to which they regard this as a vital issue.”
Mr Howe said the point was the ECJ was an EU institution.
He added: “The thing is its loyalty is entirely to the EU and its member states.
“This is why in international treaties, sovereign states simply don’t agree to these kinds of clauses.
“They will agree to binding courts of arbitration only if they are neutral.
“The irony is that under the withdrawal agreement we do have a system of bilateral arbitration.
“The problem is that when it comes to any EU law concept, that is carved out of the jurisdiction of the arbitrators.
“They can’t rule on it – they are required to send any issue to the Luxembourg court for a decision.”
Nevertheless, Mr Howe added: “I think this problem is solvable if enough effort is put into it.
“I fear the problem with this kind of issue is that politicians who want a result today tend to underplay problems further down the road.”
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