Thread by @Raphael_Hogarth

A few quick thoughts on today's fascinating @thetimes story from @BrunoBrussels and @oliver_wright, that the EU wants ECJ judge to be given the jurisdiction to enforce the UK-EU future relationship.

There are three different jobs the ECJ might (realistically) be asked to do in respect of future UK-EU agreements

(1) Accept references from joint UK-EU institutions (like the joint committee, or a panel of arbitrators), to determine the meaning of EU law.

This, in my view, is highly likely to be in the future relationship.

It is already in the Political Declaration (left) and the Irish Protocol in Withdrawal Agreement (right).

(2) Accept references from UK national courts to determine the meaning of provisions of EU law.

This, I think, is possible but less likely. It is only in the Withdrawal Agreement for a period of 8 years and only for citizens' rights. It is not a thing for other 3rd countries.

(3) Rule on infringement proceedings brought against the UK by the Commission.

This is different. In these cases, the ECJ doesn't just rule on the interpretation of the law and remit the matter to another institution for that interpretation to be applied. It decides the case.

In the Withdrawal Agreement, the ECJ is given this role in respect of the divorce bill (via the very opaque Article 160, left) and several significant parts of the Protocol on Ireland, including customs/state aid (via the quite opaque Article 12(4) of the Protocol, right).

I was surprised that the UK conceded this, and that Boris Johnson was not interested in rewriting it. This may well be the big battleground in the future relationship negotiations.

If the UK wants to avoid this Commission/ECJ jurisdiction, then it needs to do much more work on building a robust and credible supervisory architecture at home to take up the work of the Commission, as @instituteforgov argued here.
instituteforgovernment.org.uk/publications/s…

Two more interesting questions that, as yet, I don't think have received much attention.

First, what is EU institutions' role in enforcing "non-regression" obligations - i.e. keeping the same level of protection as at the end of transition in labour/environment?

When Theresa May agreed to them in her backstop, there was an obligation on UK authorities to enforce them. That obligation to *enforce* was subject to ECJ jurisdiction, but the *substantive* obligations weren't. Was never clear to me what that really meant.

Second, will the EU want to to giving obligations in the future relationship some form of "supremacy" over domestic UK law, and some form of "direct effect" so the treaty can be enforced in domestic courts? That's what Article 4 of the withdrawal deal did.

So: battles on governance coming. Lots of unanswered questions with major implications for the UK constitution, the role its courts, the role of supranational institutions and what kind of "sovereignty" the UK will have in its new relationship with the EU.

/ends