Now that the euphoria of Boris Johnson’s Christmas-saving Brexit deal has died down, the inquisition into the various compromises and concessions made by Britain and the European Union has begun.
Perhaps unsurprisingly, it has been kicked off by the Daily Express – which seems to have read the small print of the thousand-page agreement, and discovered that the European Court of Justice will not be eradicated entirely from British life on Friday morning.
Announcing the deal, Johnson claimed to have “taken back control of our laws and our destiny. From 1 January, he said, “we are outside the customs union and outside the single market.
“British laws will be made solely by the British Parliament, interpreted by the UK judges sitting in UK courts and the jurisdiction of the European Court of Justice will come to an end.”
This is largely true – with policy wonks in agreement that Downing Street’s prioritisation of reclaiming sovereignty after Brexit had more or less ended the ECJ’s jurisdiction in Britain.
Indeed, it has been cited by Johnson as a key victory of the agreement – with “binding enforcement and dispute settlement mechanisms” set to be instigated in place of the court.
But it is far from clear-cut – and it does seem that ECJ judgments will still be enforceable in the UK when it comes to the European Union’s own programmes – like Horizon, the bloc’s scientific research initiative.
The deal reads: “Decisions adopted by the European Commission imposing a pecuniary obligation on legal or natural persons other than States in relation to any claims stemming from Union programmes, activities, actions or projects shall be enforceable in the United Kingdom.
“The order for its enforcement shall be appended to the decision, without any other formality than a verification of the authenticity of the decision by the national authority designated for this purpose by the United Kingdom.
“The United Kingdom shall make known its designated national authority to the Commission and the Court of Justice of the European Union. In accordance with Article UNPRO.5.1 [Communication and exchange of information], the European Commission shall be entitled to notify such enforceable decisions directly to persons residing and legal entities established in the United Kingdom.
“The enforcement of those decisions shall take place in accordance with United Kingdom law.
“Judgments and orders of the Court of Justice of the European Union delivered in application of an arbitration clause contained in a contract or agreement in relation to Union programmes, activities or parts thereof under Protocol I shall be enforceable in the United Kingdom in the same manner as European Commission decisions, as referred to in paragraph 1 of this Article.”
In the big scheme of things, this small concession is unlikely to rankle Brexiteers – especially since Nigel Farage had declared “war is over” upon the deal’s announcement.
Nonetheless it is another reminder that – far from being a clean break – Britain’s divorce from Brussels is messy, and will continue to be for decades to come.
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